* No Man’s Land, in George Herbert Clarke (ed.), A Treasury of War Poetry (1917).
1 Oscar Schachter, ‘The Invisible College of International Lawyers’, 72 Nw. U. L. Rev. 217 (1977).
2 See Schachter, ‘The Invisible College of International Lawyers’, 223–6.
3 See Schachter, ‘The Invisible College of International Lawyers’, 225–6. Yves Dezalay and Bryant Garth similarly identified how attorneys and arbitrators in international arbitration operate as ‘moral entrepreneurs.’ Yves Dezalay and Bryant G. Garth, ‘Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes,’ 29 Law & Soc’y Rev. 27, 35 (1995).
4 Pieter Sanders may be considered the dean of the Invisible College’s school of international arbitration. Famously, on one weekend in May 1958, Sanders typed on a small portable typewriter at his father-in-law’s house what would later be ratified as the United Nations Conference on International Commercial Arbitration. See Pieter Sanders, ‘The History of the New York Convention’, in Albert Jan van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention (ICCA Congress Series No. 9, 1999) 11–14.
5 The earlier etymology of the term ‘no-man’s land’ is a little more gruesome. It was first used for a wasteland outside London where the rotting bodies of hanged, impaled, and beheaded criminals were left as a warning to potential lawbreakers. G.J. Aungier (ed.), Chroniques de London: depuis l’an 44 Hen. III. jusqu’à l’an 17 Edw. III. (Camden Soc, 1844) 56. This area came to be known as no-man’s land since no one would seek to claim this land for ownership. Later it obtained its modern connotation.
6 IBA Task Force on Counsel Conduct in Arbitration Survey (Sept. 2010). See also Günther J. Horvath, ‘Guerrilla Tactics in Arbitration, an Ethical Battle: Is There Need for a Universal Code of Ethics?’ in C. Klausegger et al. (eds.), Austrian Yearbook on International Arbitration (Manz’sche Verlags- und Universitätsbuchhandlung, 2011) 297 (‘Attorneys are bound, if at all, by the code of ethics of the home State where they are licensed.’). Similarly, when it was suggested to a conference of international arbitration practitioners ‘that an advocate in a private commercial arbitration was not bound by the same duties owed by counsel to a court, the immediate (near unanimous) response was shock and indignation’. Peter C. Thomas, ‘Disqualifying Lawyers in Arbitrations: Do the Arbitrators Play Any Proper Role?’ 1 Am. Rev. Int’l Arb. 562, 563 (1990).
7 Results of study on file with author.
8 For various definitions of ‘guerrilla tactics’, see Stephan Wilske, ‘Arbitration Guerrillas at the Gate: Preserving the Civility of Arbitral Proceedings when the Going Gets (Extremely) Tough’, in Klausegger et al. (eds.), Austrian Yearbook on International Arbitration, 315–19; Horvath, ‘Guerrilla Tactics in Arbitration, an Ethical Battle: Is There Need for a Universal Code of Ethics?’ in Klausegger et al. (eds.), Austrian Yearbook on International Arbitration, 297; Abba Kolo, ‘Witness Intimidation, Tampering and Other Related Abuses of Process in Investment Arbitration: Possible Remedies Available to the Arbitral Tribunal’, 26 Arb. Int’l 43, 46–7 (2010).
9 See Edna Sussman and Solomon Ebere, ‘All’s Fair in Love and War—Or Is It? Reflections on Ethical Standards for Counsel in International Arbitration’, 22 Am. Rev. Int’l Arb. 611, 612 (2011).
11 Johnny Veeder, a leading voice in the call for ethical innovation in international arbitration, argues persuasively that an important ‘stepping stone’ for modern arbitration is the much earlier Code by Lord Bramwell, which forms ‘the basis of English statutory law on arbitration’. V.V. Veeder, ‘Two Arbitral Butterflies: Bramwell and David’, in Martin Hunter, Arthur Marriott, and V.V. Veeder (eds.), The Internationalisation of International Arbitration: The LCIA Centenary Conference (Graham & Trotman/Martinus Nijhoff, 1995) 13–15. Closer to the 1920s, in 1917 the Swedish Chamber of Commerce founded the Committee for the Settelement of Disputes in Commerce, Industry and Shipping. Perhaps more importantly, the Court of Arbitration of the International Chamber of Commerce was founded in 1923 and ‘played a major role in the promulgation of the Geneva treaties and of the New York Convention’. Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration (4th edn., 2004) 5 (with Nigel Blackaby and Constantine Partasides).
12 The primary architects of the system were and are often referred to as ‘Grand Old Men’, and shared the features and attitudes identified by Schachter. See Yves Dezalay and Bryant Garth, Dealing in Virtue: International Arbitration and the Construction of a Transnational Legal Order (1996) 35.
13 For a detailed overview of the development of various forms of international adjudication, see Gary B. Born, ‘A New Generation of International Tribunals’, 61 Duke L. Rev. 775 (2011).
14 Throughout the nineteenth century, courts in the United States and England frequently invoked the doctrine of ‘ouster’ to void contractual arbitration clauses which they viewed ‘as unlawful circumventions of judicial jurisdiction and as denials of judicial justice’. Philip J. McConnaughay, ‘The Risks and Virtues of Lawlessness: A “Second Look” at International Commercial Arbitration’, 93 Nw. U. L. Rev. 453, 462 (1999) (citing Thomas E. Carbonneau, ‘Arbitral Adjudication: A Comparative Assessment of Its Remedial and Substantive Status in Transnational Commerce’, 19 Tex. Int’l L.J. 33, 39 n. 12 (1984)); see also Edward Chukwuemeke Okeke, ‘Judicial Review of Foreign Arbitral Awards: Bane, Boon or Boondoggle?’ 10 N.Y. Int’l L. Rev. 29, 32 n. 13 (1997).
15 As Tom Carbonneau explains, as a result of the ‘stigma of illegitimacy’ attached to arbitration, English law ‘allowed courts to reform or to revise completely an arbitrator’s ruling on the legal questions that arose during the arbitration’. Thomas E. Carbonneau, ‘Arbitral Justice: The Demise of Due Process in American Law’, 70 Tul. L. Rev. 1945, 1948 (1996) (citing Michael J. Mustilland and Stewart C. Boyd, The Law and Practice of Commercial Arbitration in England (2nd edn., 1989)).
16 See Leonard V. Quigley, ‘Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards’, 70 Yale L.J. 1049, 1049–55 (1961).
17 Yves Dezalay and Bryant Garth, ‘Fussing About the Forum: Categories and Definitions as Stakes in Professional Competition’, 21 Law & Soc. Inquiry 285, 295 (1996).
19 See W. Lawrence Craig, ‘Some Trends and Developments in the Laws and Practice of International Commercial Arbitration’, 30 Tex. Int’l L.J. 1, 6 (1995). In this chapter, I use the masculine pronoun because it discusses a period in which there were no female arbitrators. Today there are still few women, particularly at the top ranks of the arbitrator profession, which has raised concerns in many corners.
20 Dezalay and Garth, ‘Merchants of Law as Moral Entrepreneurs’, 35.
21 F.A. Mann, ‘The Aminoil Arbitration’, 54 Brit. Y.B. Int’l L. 213, 214 (1983). See also John Beechey, ‘International Commercial Arbitration: A Process Under Review and Change’, 55 Disp. Resol. J. 32 (2000).
22 See Christine Lecuyer-Thieffry and Patrick Thieffry, ‘Negotiating Settlement of Dispute Provisions in International Business Contracts: Recent Developments in Arbitration and Other Processes’, 45 Bus. Law. 577 (1990).
23 It is only relatively recently that States have begun to regard their mandatory laws as reaching extraterritorially. The ability of international arbitration to apply and enforce mandatory national laws, including when their application is to events or disputes located outside the relevant nation, is a modern concern within the international arbitration system. See Mitsubishi Motors Corp. v Soler Chrysler-Plymouth, Inc., 473 US 614, 638–40 (1985).
24 See generally,Thomas E. Carbonneau (ed.), Lex Mercatoria and Arbitration: A Discussion of the New Law Merchant (rev. edn.,1998); Michael Joachim Bonell, ‘The CISG, European Contract Law and the Development of a World Contract Law’, 56 Am.J.Comp.L. 1 (2008).
25 Dezalay and Garth, ‘Merchants of Law as Moral Entrepreneurs’, 34.
26 These principles are sometimes referred to as the ‘new lex mercatoria’, because they are a modern reincarnation of the substantive law of merchants that was developed by medieval English mercantile courts. See Berthold Goldman, ‘Lex Mercatoria’, 3 Forum Internationale 3 (November 1983) (‘Lex mercatoria is a venerable old lady who has twice disappeared from the face of the earth and twice been resuscitated.’).
27 See Nikitas E. Hatzimihail, ‘The Many Lives—and Faces—of Lex Mercatoria: History as Genealogy in International Business Law’, 71 Law & Contemp. Probs. 169, 174 (2008) (describing Clive Schmitthoff and Berthold Goldman as the ‘founding fathers of the modern lex mercatoria’ and its impact on international arbitration).
28 See Christopher R. Drahozal and Richard W. Naimark (eds.), Towards a Science of International Arbitration: Collected Empirical Research (Kluwer Law International, 2005) 248 n. 66.
29 Paul Bairoch and Richard Kozul-Wright, Globalization Myths: Some Historical Reflections on Integration, Industrialization and Growth in the World Economy, WIDER Conference on Transnational Corporations and the Global Economy, September 1995, 5–18 (arguing that globalized trade primarily consisted of trade in raw goods before the end of World War II; it was not until manufacturing predominated that globalized trade diversified and included manufactured goods).
30 See generally, Dezalay and Garth, ‘Fussing About the Forum’, 295.
31 This is not to suggest that they were infallible or always abided by the highest ethical standards. In a widely-criticized award, in the Petroleum Development Ltd v Sheikh of Abu Dhabi case, Lord Asquith selected English law because Abu Dhabi is ruled by an ‘absolute, feudal monarch’, who ‘administers a purely discretionary justice with the assistance of the Koran; and it would be fanciful to suggest that in this very primitive region there is any settled body of legal principles applicable to the construction of modern commercial instruments’. See Petroleum Development (Trucial Coast) Ltd. v Sheikh of Abu Dhabi (1951) Award, 18 I.L.R. 144.
32 See John Collier and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (2000) 264.
33 ‘It was expected that moral norms and “the force that businessmen of a country can bring to bear upon a recalcitrant neighbor” would be sufficient to ensure respect for arbitral awards.’ W. Lawrence Craig, ‘Some Trends and Developments in the Laws and Practice of International Commercial Arbitration’ 30 Tex. Int’l L.J. 1, 7 (1995).
34 See Thomas E. Carbonneau, ‘The Ballad of Transborder Arbitration’, 56 U. Miami L. Rev. 773, 774 (2002).
35 See Carbonneau, ‘The Ballad of Transborder Arbitration’.
36 One of the most important developments introduced by the New York Convention was to place the burden of proof in challenging recognition or enforcement of an arbitral award on the award creditor. See Albert Jan van den Berg, The New York Arbitration Convention of 1958 (1981) 9.
37 Today, the grounds for refusing recognition or enforcement under Article V of the Convention are interpreted as encompassing arbitrator bias and certain types of egregious misconduct by counsel. In fact, despite the starkly different language in the Federal Arbitration Act (FAA), the grounds for challenging awards under the Convention are interpreted as being largely coterminous. Alan Scott Rau, ‘The New York Convention in American Courts’, 7 Am.Rev. Int’l Arb.213, 234–5, 257 and n. 20 (1997) (‘[A]s a general matter I think it is reasonably safe to assume that in operation the standards of the Convention and the FAA will be identical.’).
38 Arbitration Act 1950 § 23 (Eng.).
39 9 USC. § 10(a), (b), (c) (2010) (emphasis added).
40 As Dezalay and Garth have explained, ‘competition for arbitration business favored a few institutions and settings. The International Chamber of Commerce was clearly the leading, even dominant, institution … [T]he same, relatively few, names of arbitrators were repeated over and over on both sides of the Atlantic’. Dezalay and Garth, Dealing in Virtue, 9.
41 Dezalay and Garth, Dealing in Virtue, 34.
42 Martin Hunter, ‘Ethics of the International Arbitrator,’ 53 Arb. 219, 220 (1987) (concluding that the world of commercial arbitration is no longer a club of gentlemen, but one that needs explicit guidelines for conduct).
43 Sch. of Int’l Arb., Queen Mary University of London, International Arbitration: Corporate Attitudes and Practices 2006 (2006), 5 (‘When…respondents were asked which mechanism they preferred to use, 73% stated international arbitration; transnational litigation was preferred by only 11%.’). While some critics, particularly those who focus on the high costs of international arbitration, suggest its popularity may be diminishing, there is no ready alternative unless the case is amenable to resolution through mediation.
44 See Leon Trakman, The Impartiality and Independence of Arbitrators Reconsidered, University of New South Wales Faculty of Law Research Series (Paper 25, 2007), 9–10 (arguing that by enacting comprehensive standards for arbitral conduct, the IBA may have unintentionally encouraged challenges to arbitral awards); David Hacking, ‘Challenges: Theirs is to Reason Why’, 1(6) Global Arb. Rev. (2006) (citing ICC statistics for annual number of arbitrator challenges to argue an increase); Charles N. Brower, ‘Keynote Address: The Ethics of Arbitration: Perspectives from a Practicing International Arbitrator’, 5 Berkley J. Int’l L. Publicist 1 (2010) (reasoning that enactment of comprehensive guidelines and publication of ethical decisions will encourage challenges).
46 See Introduction, page 4, note 13.
47 Christopher R. Drahozal and Richard W. Naimark (eds.), Towards a Science of International Arbitration: Collected Empirical Research (2005) 341 app. 1. Tracking the increase within a single institution, a full ‘two-thirds of all cases brought to ICC arbitration arose in the last 20 years of its 75-year existence’. W. Lawrence Craig et al., International Chamber of Commerce Arbitration (3rd edn., 2000) 2.
48 Dezalay and Garth, Dealing in Virtue, 6–7, n. 4; Stephan Wilske, ‘Global Competition for the Best Place of Arbitration for International Arbitrations – A More or Less Biased Review of the Usual Suspects and Recent Newcomers’, 1 Contemp. Asia Arb. J.1, 53 (2008).
49 Carbonneau, ‘The Ballad of Transborder Arbitration’, 778 (‘[L]eading international lawyers on Wall Street [eventually realized] that transborder arbitration was a force to be reckoned with in international commerce.’); Elena V. Helmer, ‘International Commercial Arbitration: Americanized, “Civilized,” or Harmonized?’, 19 Ohio St. J. Disp. Resol. 35, 40 (2003) (reporting that since the 1970s and early 1980s, ‘[t]he number of American law firms and lawyers offering arbitration services (either as counsel or, in the case of individuals, also as arbitrators) is on the rise’).
50 See generally, Lucy Reed and Jonathan Sutcliffe, ‘The “Americanization” of International Arbitration?’ 16-4 Mealey’s Int’l Arb. Rep. 11 (2001).
51 John Toulmin, ‘A Worldwide Common Code of Professional Ethics?’ 15 Fordham Int’l L. J. 673, 681 (1991/1992). (‘[T]he rules of professional conduct in the United States relating to conflicts of interest and imputed disqualification are among the strictest in the world…’.)
52 John Toulmin, ‘A Worldwide Common Code of Professional Ethics?’, 681–85. As will be discussed later, these standards affect attorneys’ and parties’ perceptions of the propriety of conduct of both arbitrators and counsel from other systems. National differences in attorney conflict-of-interest standards as well as arbitrator conflicts and disclosure standards are taken up in Chapter 2.
53 For rankings of law firms and lawyers in international arbitration practice, see paras 1.39–1.42.
54 See, e.g., Sunkist Soft Drinks, Inc. v Sunkist Growers, Inc., 10 F.3d 753, 759 (11th Cir. 1993) (finding no prejudicial misconduct despite finding that party-arbitrator met with representatives and witnesses of appointing party before arbitration to plan strategy). Conflicting cultural perspectives on ex parte communication were not an issue in cases like Sunkist because they involved solely domestic US arbitrations. Even in the United States, however, practices such as arbitrator ex parte communications with the appointing party have met with significant criticism. See, e.g., Carrie Menkel-Meadow, ‘Ethics Issues in Arbitration and Related Dispute Resolution Processes: What’s Happening and What’s Not’, 56 U. Miami L. Rev. 949, 957 (2002). This topic is taken up in greater detail in Chapter 8.
55 Amb. Malcolm Wilkey, ‘The Practicalities of Cross-Cultural Arbitration,’ in Stefan N. Frommel and Barry A.K. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration: Old Issues and New Trends (1999) 86 (describing differing approaches to ex parte communication as a problem in international arbitration that must be overcome); Detlev Vagts, ‘International Legal Ethics and Professional Responsibility’, 92 Am. Soc’y Int’l L. Proc. 378, 379 (1998) (discussing a hypothetical case involving contrasting approaches to ex parte communication with arbitrators as basis for panel discussion). See also Hans Smit, ‘Managing an International Arbitration: An Arbitrator’s View’, 5 Am. Rev. Int’l Arb. 129, 131 (1994) (taking the view that communications between party and party-appointed arbitrator concerning the appointment of the presiding arbitrator are generally accepted where the party-appointed arbitrator takes part in the selection process, even if the rules are silent); Hans Smit, ‘The Future of International Commercial Arbitration: A Single Transnational Institution?’ 25 Colum. J. Transnat’l L. 9, 16 n. 40 (1986) (noting that an award rendered by an arbitrator who communicates ex parte with an appointing party ‘may not be recognized in foreign countries’).
56 See, e.g., Albert Jan van den Berg, ‘Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration’, in M. Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (2011) 821–43; Jan Paulsson, ‘Moral Hazard in International Dispute Resolution,’ Inaugural Lecture at University of Miami School of Law (29 April 2010), 1 Transnat’l Disp. Mgmt. 10 (2010); Laurent Levy, ‘Dissenting Opinions in International Arbitration in Switzerland,’ 5 Arb. Int’l 34, 41 (1989) (arguing for a code of conduct to govern issuance of dissenting opinions).
58 The American Arbitration Association and the then-fledgling China International Economic and Trade Arbitration Commission (CIETAC) may be considered exceptions to this general rule since they also administered arbitration in their respective geographic homes.
59 In many of these newer institutions, the caseload growth is even more dramatic than that of the original European centres. The Hong Kong International Arbitration Centre went from 54 cases in 1990 to 281 in 2005; the Singapore International Arbitration Centre had only two international cases in 1991, but 29 in 2005. The Hong Kong International Arbitration Centre and the Singapore International Arbitration Centre are arguably among the most prominent regional institutions, which have in turn prompted the development of a new generation of international arbitrators.
60 Doug Sperry, ‘The Impact of International Commercial Arbitration on Developing Nations: Has the Emergence of the International Private Justice Market Narrowed the Gap Between Developed and Developing Parties?’ 40 Hong Kong L.J. 361, 374 (2010).
61 The ICC established its first international court of arbitration in India (New Delhi) in 1923. The LCIA launched its first independent overseas subsidiary in India on 18 April 2009, in New Delhi: see ICC India, <http://www.iccindiaonline.org/index.htm>; LCIA India, <http://www.lcia-india.org/>. However, the Association of Indian Lawyers (AIL) recently successfully petitioned the High Court of Delhi to issue notice to the New Delhi branch of the London Court of International Arbitration (LCIA) to remove the word ‘London Court’ from its name. As of 31 May 2011, no decision has been made. See Soibam Rocky Singh, Delhi HC Issues Notice on Working of London Court of International Arbitration in Delhi, Law et al. News, 31 May 2011, <http://www.lawetalnews.com/NewsDetail.asp?newsid=4087>.
62 The ICC founded a chapter in Dubai in 2004, and the DIFC-LCIA Arbitration Centre was founded in February 2008 as a partnership between the Dubai International Financial Centre (established in 2004) and the LCIA. See ICC-UAE, <http://www.iccuae.com/>; DIC-LCIA Arbitration Centre, <http://www.difcarbitration.com/index.html>. From 2009–10, the DIFC-LCIA registered a dozen cases, involving parties from the UAE, Malaysia, Oman, Norway, the Cayman Islands, Kuwait, Hong Kong, and the British Virgin Islands. The sums in dispute in these cases range from US$50,000–US$100 million. News from the LCIA, 15 NO.2 IBA Arb.News 112.
63 Singapore has become the Asian hub for international arbitration. The Singapore International Arbitration Centre (SIAC) handled 198 new cases in 2010—up from 160 in 2009 and 99 in 2008. As such, the ICC opened a regional office in Singapore in January 2010, and the LCIA opened their New Delhi office in 2009, largely to resolve the large number of Indian arbitrations surging to the SIAC. See SIAC, 2010 CEO’s Annual Report, <http://www.siac.org.sg/index.php?option=com_content8view=article8id=2888Itemid=148>; ICC: News, ‘ICC Inaugurates Asia Regional Office’, <http://www.iccwbo.org/index.html?id=34530>; Greg Bousfield, ‘Stepping up to Singapore: LCIA’s Indian Arbitration Mission’, Commercial Dispute Resolution, 29 April 2010, <http://www.cdr-news.com/arbitration-and-adr/112-articles/706-stealing-from-singapore-lcias-indian-arbitration-mission>.
64 Catherine A. Rogers, ‘Peace, One Dispute at a Time: The Jerusalem Arbitration Center’, New York Dispute Resolution Lawyer (Spring 2012).
65 Doug Sperry, ‘The Impact of International Commercial Arbitration on Developing Nations’, 361, 378 (describing ‘an opportunity for smaller, regional institutions to gain a foothold in the market and for new arbitrators from those regions to gain entry into what has traditionally been an exclusive club’).
67 For parties from developing countries, local arbitrators were regarded as necessary to counterbalance what was regarded as biased Western-centric visions that European tribunals imposed in earlier arbitrations. See,e.g., Ahmed Sadek El-Kosheri, ‘Is There a Growing International Arbitration Culture in the Arab-Islamic Juridical Culture?’ in Albert Jan van den Berg (ed.), ICCA, International Dispute Resolution: Towards an International Arbitration Culture (1998) 47, 47–48 (noting that, despite the long history and current popularity of arbitration in Arab nations, the Arab legal community remains hostile toward transnational arbitration because of biased treatment by Western arbitrators); John Beechey, ‘International Commercial Arbitration’, 32, 33 (explaining that there ‘remains a huge task’ to convince developing nations that they can expect a fair hearing before international arbitration tribunals); Dezalay and Garth, Dealing in Virtue, 43–45.
68 The term ‘transparency’ is subject to various interpretations. In this book, I use the term to mean the ready availability, primarily to parties, of the rules that regulate and govern international arbitration processes and decision-making. For further analysis of how transparency is often confused with, but is distinguishable from, ‘public access’ and ‘disclosure’, see Catherine A. Rogers, ‘Transparency in International Commercial Arbitration’, 54 U. Kan. L. Rev. 1301, 1319 (2006).
69 One earlier study of 500 arbitration clauses revealed that only 3% of clauses empowered the arbitrators to decide under these doctrines. See Christopher R. Drazohal, ‘Commercial Norms, Commercial Codes, and International Commercial Arbitration’, 33 Vand. J. Transnat’l L. 79, 129 n. 233 (2000) (citing study of clauses from 1987–89).
70 See Detlev Vagts and W. Michael Reisman, ‘International Chamber of Commerce Arbitration’, 80 Am. J. Int’l L. 268 (1986) (reviewing W. Laurence Craig et al., International Chamber of Commerce Arbitration (1984)).
71 William W. Park, ‘Income Tax Treaty Arbitration’, 10 Geo. Mason L. Rev. 803, 823 (2002) (‘The marketplace has pushed international arbitration toward reasoned awards.’); Rt. Hon. Lord Justice Bingham, ‘Reasons and Reasons for Reasons: Differences Between a Court Judgment and an Arbitral Award’, 4 Arb. Int’l 141, 145 (1988) (noting the ‘strong balance of international opinion in favour of the giving of reasons by arbitrators’); Donald P. Arnavas and Rt. Hon. Lord David Hacking, Using ADR to Resolve International Contract Disputes, Briefing Papers no. 04-11 (Oct. 2004) (explaining that reasoned awards have always been the norm in international arbitration, but with the shift to more formalized and rule-based decision-making, awards have necessarily become longer and more detailed).
73 See Born, International Commercial Arbitration (2014) 2269.
74 See Drazohal, ‘Commercial Norms, Commercial Codes, and International Commercial Arbitration’, 129.
75 See Christopher R. Drahozal, ‘Contracting Out of National Law: An Empirical Look at the New Law Merchant’, 80 Notre Dame L. Rev. 523, 537–46 (2005) (reporting results of empirical research that demonstrate parties overwhelmingly choose national law and hypothesizing that national law is preferred because it is more predictable than alternative transnational legal rules); 2010 International Arbitration Survey: Choices in International Arbitration, Queen Mary University of London, 11–16 (highlighting the fact that many corporations now rely on choice of law provisions to determine which substantive law will govern a dispute, discussing the procedures that institutions use to make this choice, and arguing certain factors lead entities to use these mechanisms); see also Ryan E. Bull, Note, ‘Operation of the New Article 9 Choice of Law Regime in an International Context’, 78 Tex. L. Rev. 679, 706 (2000).
76 While the trend is important to recognize, the goal of formality should not be overstated. For many, flexibility remains an important feature of international arbitration.
77 See Christian Bühring-Uhle, Arbitration and Mediation in International Business: Designing Procedures for Effective Conflict Management (Kluwer Law International, 1996) 17–36.
78 Dezalay and Garth, ‘Fussing About the Forum’, 311.
79 See generally, R. Lillich and C. Brower (eds.), International Arbitration in the 21st Century: Towards ‘Judicialization’ and Uniformity [Twelfth Sokol Colloquium] (1993) (critiquing the need for balance between flexibility and certainty); Klaus Peter Berger, Private Dispute Resolution in International Business (2006) 303 (‘It is particularly in major, multi-million dollar arbitrations that the informal atmosphere … has given way to confrontation and litigation tactics, hitherto known only from proceedings before national courts. Over the past decades, the arbitral process has undergone a fundamental transformation which is often characterized as the “judicialization” of arbitration …’).
80 Critics of the ‘Americanization’ of international arbitration use the term to describe a growing ‘unbridled and ungentlemanly aggressivity and excess’ in arbitration, a ‘total warfare’ characterized by excesses of US-style discovery and distended briefs and document submission. Yet most scholars view the trend not so much as one of ‘judicialization’ or ‘Americanization’, but rather as one of ‘harmonization’ or ‘homogenization’—a merging of common and civil law traditions. See Kevin T. Jacobs and Matthew G. Paulson, ‘The Convergence of Renewed Nationalization, Rising Commodities, and “Americanization” in International Arbitration and the Need for More Rigorous Legal and Procedural Defenses’, 43 Tex. Int’l L.J. 359, 364 (2008); Elena V. Helmer, ‘International Commercial Arbitration: Americanized, “Civilized”, or Harmonized?’ 19 Ohio St. J. on Disp. Resol. 35, 37 (2003); Nicolas C. Ulmer, ‘A Comment On “The ‘Americanization’ of International Arbitration?”’ 16-6 Mealey’s Int’l Arb. Rep. 1 (2001); Lucy Reed and Jonathan Sutcliffe, ‘The “Americanization” of International Arbitration?’ 16-4 Mealey’s Int’l Arb. Rep. 11 (2001).
82 Actual data on attorney fees in international arbitration is often prone to exaggeration and extrapolation, with little empirical evidence. However, the generous size of such fees can be inferred from data on international arbitral awards. See, e.g., David Smith, Note, ‘Shifting Sands: Cost and Fee Allocation in International Investment Arbitration’, 51 Va. J. Int’l L. 749 (2011) (citing numerous examples of legal costs in international investment arbitration); Susan D. Franck, ‘Empirically Evaluating Claims About Investment Treaty Arbitration’, 86 N.C. L. Rev. 1, 66–68 (2008) (while the empirical validity of claims of costs of arbitration is uncertain, costs often run in the US$ millions, with legal fees a significant part); David A. Gantz, Investor-State Arbitration Under ICSID, The ICSID Additional Facility and the UNCTAD Arbitral Rules, (US Vietnam Trade Council Seminar Series, 2004) 23, <http://www.usvtc.org/trade/other/Gantz/Gantz_ICSID.pdf> (legal fees for major law firms who represent investors and host governments range from US$200 to US$500 per hour, but may be negotiable (downward)).
83 William W. Park, ‘National Law and Commercial Justice: Safeguarding Procedural Integrity in International Arbitration’, 63 Tul. L. Rev. 647, 680 (1989) (documenting a ‘scramble among Western European nations’ to compete for international arbitration business); Sir Michael J. Mustill, ‘Arbitration: History and Background’, 6-2 J. Int’l Arb. 43, 53 (1989) (‘[O]ne must take note of the efforts made by individual nations to make their arbitration laws … more attractive.’). Efforts by specific jurisdictions such as Japan, Singapore, New York, and Florida to attract international arbitration business are discussed in Chapter 1, paras 1.78–1.84.
84 John Yukio Gotanda, ‘Awarding Costs and Attorneys’ Fees in International Commercial Arbitrations’, 21 Mich. J. Int’l L. 1, 1–3 (1999) (noting that an overwhelming number of countries permit arbitrators to award costs and fees, which often run into the millions of dollars). One detractor goes so far as to argue that since arbitrators’ fees under the ICC Rules are set based on ‘the complexity of the case, as reflected in the award’, arbitrators have ‘an incentive to write unnecessarily elaborate opinions’. Julia A. Martin, ‘Arbitrating in the Alps Rather Than Litigating in Los Angeles: The Advantages of International Intellectual Property-Specific Alternative Dispute Resolution’, 49 Stan. L. Rev. 917, 967 (1997).
85 To create the Scorecard, reporter Michael Goldhaber gathers and publishes information about the largest arbitrations relying ‘primarily on information supplied by lawyers involved in the cases, supplemented in some cases by arbitration or court papers, securities disclosures, and media reports. In many cases we have had to rely on information from only one side in the dispute, and we were not able to obtain a response from the other side in all cases’. Michael D. Goldhaber, ‘Arbitration Scorecard: Methodology’, The American Lawyer (Online) 1 July 2011, <http://www.lexisnexis.com/lawschool/research/default.aspx?ORIGINATION_CODE=000928signoff=>.
87 2010 International Arbitration Survey: Choices in International Arbitration, Queen Mary University of London, 18–19 (finding that London, England was the most popular choice of seat for international arbitrations; followed by Geneva, Switzerland; Paris, France; Tokyo, Japan, and others. Factors that helped determine the seat include: convenience, infrastructure, application of substantive law, corporate policy, location of parties, and less influential concerns).
89 As the Special Committee on Professionalism of National Academy of Arbitrators summarized: ‘There are those among us who view arbitration primarily as a business. They are likely to concentrate more on self-interest than the interest of the profession … We recognize that arbitrators are no less ambitious than other professionals; we recognize that many of us are dependent on arbitration fees for a livelihood.’ Report of Special Committee on Professionalism of National Academy of Arbitrators, Daily Lab. Rep. (BNA) No. 106, E-1, E-4 (4 June 1987), cited in Alan Scott Rau, ‘Integrity in Private Judging’, 38 S. Tex. L. Rev. 485, 485 (1997). See also Dezalay and Garth, Dealing in Virtue, 34–36.
90 Although arbitrators’ fees are often pointed to as extravagant, in fact empirical research indicates that they represent only a small fraction of the overall costs of an arbitral dispute. Attorney feesare by far the highest percentage of costs. ICC Commission Report on Techniques for Controlling Time and Costs in Arbitration, <http://www.iccwbo.org/Advocacy-Codes-and-Rules/Document-centre/2012/ICC-Arbitration-Commission-Report-on-Techniques-for-Controlling-Time-and-Costs-in-Arbitration/> (finding that only 18% of costs are attributable to arbitrator and administrative fees). The implication, verified by anecdotal research, is that partners at leading law firms, whose fees on a particular case involve an entire team of attorneys, earn more as counsel than when serving in the same case as an arbitrator.
91 Dezalay and Garth, Dealing in Virtue, 37. In a similar vein, David Hacking reflects, ‘The small community of international arbitrators, who know and trust one another, is gone. Peer-group control will no longer be here to preserve the “ethics” of international arbitration’. David Hacking, ‘Ethics, Elitism, Eligibility: A Response: What Happens if the Icelandic Arbitrator Falls Through the Ice?’ 15 J. Int’l Arb.73, 77 (1998).
92 Detlev F. Vagts, ‘The International Legal Profession: A Need for More Governance?’ 90 Am. J. Int’l L. 250, 250 (1996).
93 As Mary Daly explains: ‘Until recently, lawyers infrequently practiced in more than one state. Law firms rarely established branch offices, with the possible exception of an office in Washington, D.C. or in a distant city to meet the particular needs of a single client. Consequently, in searching for ethical guidance, lawyers, courts, and disciplinary authorities looked only to the professional standards adopted by a single jurisdiction, the lawyer’s state of general admission or the court to which the lawyer had been admitted pro hac vice.’ Mary C. Daly, ‘Resolving Ethical Conflicts in Multijurisdictional Practice—Is Model Rule 8.5 the Answer, an Answer, or No Answer at All?’ 36 S. Tex. L. Rev. 715, 719 (1995). For an insightful analysis of how the term ‘partner’ has become something of a misnomer as US law firms have erupted into large corporate-like structures that sprawl across multiple jurisdictions, see David B. Wilkins, ‘Partner, Shmartner! EEOC v Sidley Austin Brown & Wood’, 120 Harv. L. Rev. 1264 (2007).
94 One of the earliest examples is when John Foster Dulles of New York firm Sullivan & Cromwell played a key role in the negotiations of the Versailles Treaty at the end of the First World War and his firm went on to promote capital flow from North America to Europe. John Flood and Fabian Sosa, ‘Lawyers, Law Firms, and the Stabilization of Transnational Business’, 28 Nw. J. Int’l L. & Bus. 489, 502 (2008).
95 See, e.g., Charles W. Wolfram, Modern Legal Ethics (1986) 53.
96 As Lord Woolf has explained, ‘All barristers will have to be members of one of the four Inns of Court and before they are called to the bar by their Inn. The dining process is an important part of developing the collegiate culture which contributes to professional standards.’ Right Hon. Lord Woolf, ‘The Atlantic Divide’, 34 Tulsa L.J. 657 (1999); see also Peter A. Joy, ‘Making Ethics Opinions Meaningful: Toward More Effective Regulation of Lawyers’ Conduct’, 15 Geo. J. Legal Ethics 313, 321 and n. 23 (2002) (noting that at the Inns of Court in London ‘initiates to the legal profession joined a close-knit group with common eating rooms and common goals’).
97 See Detlev F. Vagts, ‘Professional Responsibility in Transborder Practice: Conflict and Resolution’, 13 Geo. J. Legal Ethics 677, 688–9 (2000); Vagts, ‘The International Legal Profession’, 250.
98 See Ronald D. Rotunda, ‘Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code’, 34 Hofstra L. Rev. 1337, 1353 (2006).
99 See Vagts, ‘The International Legal Profession’, 250.
100 CCBE, The Declaration of Perugia on the Principles of Professional Conduct of the Bars and Law Societies of the European Community (1977). See also Louise L. Hill, ‘Lawyer Publicity in the European Union: Bans Are Removed but Barriers Remain’, 29 Geo. Wash. J. Int’l L. & Econ. 381, 390 (1995) (explaining that the Declaration of Perugia attempted to harmonize and define common principles for the various rules of professional conduct for EU lawyers).
101 See Marc Galanter and William Henderson, ‘The Elastic Tournament: A Second Transformation of the Big Law Firm’, 60 Stan. L. Rev. 1867, 1882 (2008).
102 David B. Wilkins, ‘Team of Rivals? Toward a New Model of the Corporate Attorney-Client Relationship’, 78 Fordham L. Rev. 2067, 2089 (2010) (internal citations omitted); see also James W. Jones, ‘The Challenge of Change: The Practice of Law in the Year 2000’, 41 V and. L. Rev. 683 (1988).
103 In 2009, of the top 100 European firms, one firm (Garrigues) had over 2000 lawyers, two had over 1000, and six had over 500. See ‘European 100: The Continental Elite 2011’, The Lawyer, <http://www.centaur2.co.uk/emags/thelawyer/tl_Euro100_2011/>; ‘UK Annual Report 2010: The Cost of Cutting’, The Lawyer, <http://www.centaur2.co.uk/emags/thelawyer/uk200_2010/>; ‘European 100: The Continental Elite 2009’, The Lawyer, <http://www.centaur2.co.uk/emags/thelawyer/TL_Euro_100/>.
104 John Flood, ‘Megalaw in the U.K.: Professionalism or Corporatism? A Preliminary Report’, 64 Ind. L.J. 569 (1989).
106 Glenn Morgan, ‘Institutional Legacies and Firm Dynamics: The Growth and Internationalization of UK and German Law Firms’, 26(12) Org. Stud. 1765, 1773 (2005).
108 Geoffrey C. Hazard Jr and Angelo Dondi, Legal Ethics: A Comparative Study (2004) 152–3. For example, in Korea, the documents that delineate attorneys’ ethical obligations ‘are collectively six pages long’. Robert W. Wachter, ‘Ethical Standards in International Arbitration: Considering Solutions to Level the Playing Field’, 24 Geo. J. Legal Ethics 1143, 1149–50 (2011). In their brevity, these sources ‘leave out details about what specific tactics are permitted or forbidden in adversarial proceedings’ and ‘there is very little written commentary on this subject from academics and practitioners’. See Wachter, ‘Ethical Standards in International Arbitration’, 1049. The explanation for this ‘dearth’ of formal regulation is that ‘The Korean bar is relatively small and culturally homogeneous, so the unwritten and unspoken code fills in all of the gaps from the six pages of the Ethics Charter and the Ethics Regulation’. Wachter, ‘Ethical Standards in International Arbitration’, 1049.
109 See Carole Silver, ‘Winners and Losers in the Globalization of Legal Services: Situating the Market for Foreign Lawyers’, 45 Va. J. Int’l. L. 897, 916–17 (2005) (noting the growth of foreign offices backed by US law firms). Notably, these statistics come from a study of only 60 firms; the overall number is probably higher.
110 Silver, ‘Winners and Losers in the Globalization of Legal Services’, 916.
111 The historical dominance of US firms may soon be challenged. US law firms are generally prohibited from engaging in multi-disciplinary practice structures, but must compete with such structures that are increasingly permitted by competing jurisdictions, such as the UK and Australia. See Ted Schneyer, ‘“Professionalism” as Pathology: The ABA’s Latest Policy Debate on Non-lawyers’ ownership of Law Practice Entities’, 40 Fordham Urb. L.J. 75 (2012).
112 See Steven Mark, ‘Harmonization or Homogenization? The Globalization of Law and Legal Ethics—An Australian Viewpoint’, 34 Vand. J. Transnat’l L. 1173 (2001).
113 Compare ‘The Global 100’, 10/2009 Am. Law. 191 (2009); with ‘The Great Game’, 10/2009 Am. Law. 134 (2009).
114 WTO, Council for Trade in Services, LegalServices—Background Note by the Secretariat, WTO Doc S/C/W/43, <http://docs.wto.org>, select ‘Search’, select ‘All documents’, search Document number: ‘98-2691’ [1998 WTO Report]; WTO, Council for Trade in Services, LegalServices—Background Note by the Secretariat, WTO Doc S/C/W/318, <http://docs.wto.org>.
115 For an insightful analysis of the trade implications on legal services, see Laurel S. Terry, ‘The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as “Service Providers”’, J. Prof. Law. 189 (2008); Laurel S. Terry, ‘From GATS to APEC: The Impact of Trade Agreements on Legal Services’, 43 Akron L. Rev. 875 (2010).
116 Laurence Etherington and Robert Lee, ‘Ethical Codes and Cultural Context: Ensuring Legal Ethics in the Global Law Firm’, 14 Ind. J. Global Legal Stud. 95, 97 (2007).
117 See Carole Silver, ‘Regulatory Mismatch in the Market for Legal Services’, 23 Nw. J. Int’l L. & Bus. 487, 495 (2003) (‘The international label is not claimed only by large law firms; even small firms participate in this specialty.’). This phenomenon is a logical counterpart of the increased participation of smaller and medium-sized companies in the global economy.
118 Laurel S. Terry, ‘A Case Study of the Hybrid Model for Facilitating Cross-Border Legal Practice: The Agreement Between the American Bar Association and the Brussels Bars’, 21 Fordham Int’l L.J. 1382, 1384 (1998) (‘[D]espite the increase in scholarly writing on this topic, the development of cross-border practice throughout the world has vastly outpaced the theory of whether and how such practice should be regulated’); Justin Castillo (Reporter), ‘International Law Practice in the 1990s: Issues of Law, Policy and Professional Ethics’, 86 Am. Soc’y Int’l L. Proc. 272, 282 (1992) (‘International … ethics is an area where there is little solid information available’).
119 This image is borrowed from Bernard L. Greer, Jr, ‘Professional Regulation and Globalisation: Toward a Better Balance’, in J. Ross Harper (ed.), Global Law in Practice (1997) 169, 169–70.
120 In India there is ‘an absolute bar’ on attorney advertising and solicitation, which would even preclude Indian attorneys from being listed on a referral website. Michael A. Gollin, ‘Answering the Call: Public Interest Intellectual Advisors’, 17 Wash. U. J. L. & Pol’y 187, 209 (2005).
121 David T. Austern, ‘Is Lawyer Solicitation of Bhopal Clients Ethical?’ Legal Times, 21 Jan. 1985, 16.
122 See Austern, ‘Is Lawyer Solicitation of Bhopal Clients Ethical?’; ‘Bhopal Is for Lawyers’, 37 (1) Nat’l. Rev., 11 Jan. 1985, 20.
123 Perceptions of opportunism by US attorneys may have contributed to India’s decision to become the sole representative of the Bhopal victims and its opposition to any compensation being paid to attorneys who initiated the cases in the United States.
124 In fact, it was not until 2006 that the American Bar Association explicitly provided through Model Rule 8.5, one of the Model Rules that can be adopted by individual states, that jurisdiction of state regulatory authorities would extend to attorney conduct outside the United States. For an extended discussion of the jurisdiction and choice-of-law issues related to regulation of US attorneys engaged in law practice outside the United States, see Catherine A. Rogers, ‘Lawyers Without Borders’, 30 U. Penn. Int’l L. Rev. 1035 (2009).
125 Contingency fees are generally prohibited in most other countries, although recently there has been some softening as many European jurisdictions are exploring. Mark A. Behrens et al., ‘Global Litigation Trends’, 17 Mich. St. J. Int’l L. 165, 183–84 (2009).
126 See In re Girardi, 611 F.3d 1027 (9th Cir. 2010), amended, 08-80090, 2010 WL 3517899 (9th Cir. Sept. 10, 2010) (holding that a formal reprimand of one attorney was appropriate discipline for recklessness in determining false statements or documents, and six-month suspension was appropriate discipline for attorneys’ knowing submission of false documents); In re Chevron Corp., 749 F. Supp. 2d 141, 146 (S.D.N.Y. 2010), aff’d sub nom. Lago Agrio Plaintiffs v Chevron Corp., 409 F. App’x. 393 (2d Cir. 2010) (denying motion to quash subpoena seeking testimony and documents from a New York attorney regarding alleged misconduct, including intimidating Ecuadorian judges, obtaining political support for the Ecuadorian lawsuit, procuring and packaging expert testimony for use in Ecuador, pressuring Chevron to pay a large settlement, and obtaining a book deal); Michael Goldhaber, ‘Chevron Plaintiffs Double Feature: Emery Celli Moves to Withdraw in New York Discovery Case’; ‘Patton Boggs Accuses Gibson Dunn of Tortious Interference’; ‘Very Different Responses: Firms Repping Chevron Plaintiffs Offer Up Double Feature Corporate Counsel’, The American Lawyer (Online) 9 February 2011, <http://www.lexisnexis.com/lawschool/research/default.aspx?ORIGINATION_CODE=000928signoff=off>.
127 Apart from violation of local ethical rules, States have also shown some willingness to impose criminal sanctions on foreign attorneys who violate local criminal laws. For example, taking of a deposition is a common practice in the United States, but is considered unethical and illegal in many other countries, such as Brazil. According to the US Department of State: ‘The Government of Brazil asserts that, under Brazilian Constitutional Law, only Brazilian judicial authorities are competent to perform acts of a judicial nature in Brazil. Brazil has advised it would deem taking depositions in Brazil by foreign persons to be a violation of Brazil’s judicial sovereignty. Such action potentially could result in the arrest, detention, expulsion, or deportation of the American attorney or other American participants.’ US Dep’t of State, Brazil Judicial Assistance, <http://travel.state.gov/law/judicial/judicial_672.html>.
128 Laurel S. Terry et al., ‘Transnational Legal Practice 2009’, 44 Int’l Law. 563, 569 (2009).
129 For example, in Hong Kong, ‘practice of law’ is defined broadly enough to include ‘provid[ing] general guidance as to what foreign lawyers and firms may not do’ and any activity that ‘can properly be regarded as a service customarily provided by a solicitor in his capacity as such’. Darryl D. Chiang, ‘Foreign Lawyer Provisions in Hong Kong and the Republic of China on Taiwan’, 13 UCLA Pac. Basin L.J. 306, 328–9 (1995) (citing Foreign Lawyers Registration Rules, (1994) Cap. 159 vol. 2, ch. 8, § 12 (H.K.)).
130 These limitations most likely provide the regulatory counterpart to the empirical phenomenon observed by Professor Silver and her colleagues. An office in another country would not be of much benefit to a US or UK firm if it were staffed with foreign attorneys who were legally precluded from engaging in any work that implicated local law or legal institutions. Glocalization, in other words, is intricately intertwined with the restrictions imposed on cross-border legal practice.
131 Laurel S. Terry, ‘An Introduction to the European Community’s Legal Ethics Code Part II: Applying the CCBE Code of Conduct’, 7 Geo. J. Legal Ethics 345 (1993); Laurel S. Terry, ‘An Introduction to the European Community’s Legal Ethics Code Part I: An Analysis of the CCBE Code of Conduct’, 7 Geo. J. Legal Ethics 1 (1993).
132 For an in-depth analysis of the development of the legal profession in China, see Ethan Michaelson, Unhooking from the State: Chinese Lawyers in Transition (2003). With regard to other dimensions of the globalization of law practice, see Jayanth K. Krishnan, ‘Globetrotting Law Firms’, 23 Geo. J. Legal Ethics 57, 87 (2010) (‘India has no choice but to resist infiltration by UK law firms because they believe the UK has ulterior motives similar to the British East India Company from the seventeenth century.’); Bruce E. Aronson, ‘The Brave New World of Lawyers in Japan: Proceedings of a Panel Discussion on the Growth of Corporate Law Firms and the Role of Lawyers in Japan’, 21 Colum. J. Asian L. 45, 52–53 (2007) (the Japanese bar association has historically resisted integration of foreign attorneys, but pressure from trade negotiations with the United States resulted in licensing of foreign attorneys).
133 Even in China, where a strong Central Government has asserted itself in most industries, regulation of transnational legal practice remains ambiguous, and limitations on foreign firms are apparently under-enforced. See Sida Liu, ‘Globalization as Boundary-Blurring: International and Local Law Firms in China’s Corporate Law Market’, 42 Law & Soc’y Rev. 771 (2007). This lax regulatory enforcement has allegedly led to ‘backdoor’ legal activities by foreign attorneys, raising the hackles of local Chinese attorneys who complain that foreign firms were improperly impinging on business that would otherwise go to local lawyers. See Anthony Lin, ‘Shanghai Bar Association Goes after Foreign Firms’, N.Y. L. J., 16 May 2006, <http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1147856732635>. See A. Shankar, ‘Madras HC issues notice in PIL seeking action against foreign law firms’, Law et al. News, 20 Mar. 2010. Similarly, long after the Bhopal case, foreign attorneys apparently continue to come into India on tourist visas, which many Indian attorneys claim violate the restrictions of the Advocates Act of 1961. According to Indian lawyers, who filed a public interest lawsuit in protest, ‘32 law firms … are clandestinely operating in India’. See A. Shankar, ‘Madras HC issues notice in PIL seeking action against foreign law firms’, Law et al. News, 20 Mar. 2010.
134 Misasha Suzuki, ‘The Protectionist Bar Against Foreign Lawyers in Japan, China, and Korea: Domestic Control in the Face of Internationalization’, 16 Colum. J. Asian L. 385 (2003).
135 Markets for legal services are a significant trade issue, and remain one of the few areas in which the United States enjoys a significant trade surplus. ‘The US Department of Commerce Bureau of Economic Analysis estimates that the export of legal services from the United States generated $4.3 billion in receipts in 2005, while imports of legal services were valued at $914 million, yielding a 4:1 surplus for balance-of-payment accounts. According to the UK Department of Constitutional Affairs, British law firms generated £1.9 billion in exports in 2003, compared to £1.5 billion in imports.’ Laurel S. Terry et al., ‘Transnational Legal Practice: 2006–07 Year-in-Review’, 42 Int’l L. 833, 834 (2008).
136 See Laurel S. Terry, ‘The Legal World Is Flat: Globalization and Its Effect on Lawyers Practicing in Non-Global Law Firms’, 28 Nw. J. Int’l L. & Bus. 527, 529 (2008) (‘[B]etween 1993 and 2003, US exports of legal services grew 134%, but imports grew 174%.’).
138 Vagts, ‘Professional Responsibility in Transborder Practice’, 689. The second most prevalent basis for jurisdiction is nationality of the attorneys, or in the case of bar organizations, membership. See Vagts, ‘Professional Responsibility in Transborder Practice’, 689–90 (citing Restatement (Third) Foreign Relations Law § 402(2) (1987)).
139 See Hannah L. Buxbaum, ‘Transnational Regulatory Litigation’, 46 Va. J. Int’l L. 251, 273–80 (2006); Kal Raustiala, ‘The Geography of Justice’, 73 Fordham L. Rev. 2501, 2514–17 (2005).
140 For instance, in France, each of the 180 local bars except for the very smallest has one or more Deontology Committees, which are composed of elected members of the local bar and have power to promulgate the bar’s ethical regulations (Réglement Intérieur) and recommend avocats to the local Council (Conseil de l’Ordre) for disciplinary proceedings. The Council is the only organ that has the power to sanction members for violations of rules of conduct. See Loi n° 2004-130 du 11 février 2004 réformant le statut de certaines professions judiciaires ou juridiques, des experts judiciaires, des conseils en propriété industrielle et des experts en ventes aux enchères publiques [Act No. 2004-130 of 11 Feb. 2004 reforming the status of certain judicial and legal professions, legal experts, the patent attorneys and experts in public auctions]; Loi n° 71-1130 du 31 décembre 1971 portant réforme de certaines professions judiciaires et juridiques [Law No. 71-1130 of 31 Dec. 1971 on reforming certain judicial and legal professions] arts. 17 and 22; John Leubsdorf, Man in His Original Dignity: Legal Ethics in France (2001) 2; Christina Dadomo and Susan Farran (eds.), The French Legal System 2nd edn. (Sweet & Maxwell,1996) 119–120.
141 Regulation of the legal profession ‘remains local in both scope and administration, often providing little guidance’. Ronald A. Brand, ‘Professional Responsibility in a Transnational Transactions Practice’, 17 J.L. & Comm. 301, 302–03 (1998).
142 See Eli Wald, ‘Federalizing Legal Ethics, Nationalizing Law Practice, and the Future of the American Legal Profession in a Global Age’, 48 San Diego L. Rev. 489 (2011); see William T. Barker, ‘Extra-jurisdictional Practice by Lawyers’, 56 Bus. Law. 1501 (2001).
143 Historically, most States permitted some form of professional independence. For example, eighteenth-century Prussia did not, despite significant efforts, absorb advocates completely into the civil service machinery. See Dietrich Rueschemeyer, ‘Comparing Legal Professions Cross-Nationally: From a Professions-Centered to a State-Centered Approach’, 11 Am. B. Found. Res. J. 415, 445 (1986). Similarly, the former Soviet Union made unique allowances for attorneys to work as self-employed professionals in cooperative colleges, a privilege denied to virtually all other commercial sectors, even if allowances for attorneys were more rhetorical than actual. See Lawrence M. Friedman and Zigurds L. Zile, ‘Soviet Legal Profession: Recent Developments in Law and Practice’, 1964 Wis. L. Rev. 32 (1964). More recently, the proliferation of laws that indirectly regulate attorneys have raised questions about what self-regulation really means. See, e.g., Fred C. Zacharias, ‘The Myth of Self-Regulation’, 93 Minn. L. Rev. 1147 (2009).
144 For an overview of these developments at the international level, see Terry et al., ‘Transnational Legal Practice’.
145 In many jurisdictions, self-regulation is not part of the local tradition. Instead, ethical rules are promulgated through legislative enactment, even if supplemented by ancillary enforcement mechanisms. For example, in Thailand, China, Egypt, and Turkey the content attorney ethical rules are delineated by statute. In other jurisdictions, such as Chile, ethical rules are written by professional guilds, but those guilds are voluntary organizations that can exclude members, but which have no formal regulatory power since membership is not required for law practice.
146 Ted Schneyer, ‘An Interpretation of Recent Developments in the Regulation of Law Practice’, 30 Okla. City U. L. Rev. 559, 559–610, 569–70 (2005) (arguing that bar associations ‘continue, often with ABA support, to resist federal “intrusions”’ but conceding that ‘they must increasingly content themselves with trying to influence, rather than staving off, federal initiatives’); Fred C. Zacharias, ‘The Myth of Self-Regulation’, 93 Minn. L. Rev. 1147 (2009) (arguing that there are costs to falsely regarding ‘disciplinary codes as mere professional self-regulation rather than as one element of an expansive regulatory regime governing the bar’); John Leubsdorf, ‘Legal Ethics Falls Apart’, 57 Buff. L. Rev. 959, 961 (2009) (arguing that the ideal of attorney self-regulation has been almost entirely eroded in England). This phenomenon is also occurring in Canada, England, Australia, and with European regulation.
147 Informal research and anecdotal accounts suggest that most bar authorities do not regard themselves as having extraterritorial power. See, e.g., ‘20th Annual Workshop of the Institute for Transnational Arbitration: Confronting Ethical Issues in International Arbitration’, 3:3 World Arb. & Mediation Rev. 363–64 (2009) (‘[T]here is a parochial view … that [Argentinean lawyers] are not prepared at this time to extend to lawyers practicing abroad our rules because [Argentinean lawyers] do not feel we have jurisdiction.’).
148 See Ronald J. Daniels and Michael Trebilcock, ‘The Political Economy of Rule of Law Reform in Developing Countries’, 26 Mich. J. Int’l L. 99, 125 (2004) (discussing the lack of resources of Latin American bar associations); Susan P. Koniak, ‘Corporate Fraud: See, Lawyers’, 26 Harv. J.L. & Pub. Pol’y 195, 215 (2003) (discussing the inability of underfunded and understaffed bar authorities to regulate lawyers assisting securities and other types of fraud); Quintin Johnstone, ‘Bar Associations: Policies and Performance’, 15 Yale L. & Pol’y Rev. 193, 199 (1996) (‘In comparison to large business corporations and many government agencies, the major comprehensive bar associations’ financial resources are limited.’).
149 In fact, the few examples of investigation of attorney misconduct in the United States have been through the courts, in connection with parallel cases that are pending.
150 Although it may seem strange to talk about bar associations regulating arbitrators, there are some bar authorities that already do or are contemplating direct regulation of arbitrators who are licensed as attorneys. For example, Article 55 of the Italian Codice Deontologico Forense specifically requires, among other things, that Italian lawyers who serve as arbitrators remain independent, disclose certain information about relevant contacts, and preserve the trust parties have placed in them. Similarly, in the United States, there is a new proposed Model Rule for Lawyers Acting as Third Party Neutrals, which if enacted would become part of the Model Rules. See CPR-Georgetown Commission on Ethics and Standards of Practice in ADR, Model Rules for the Lawyer as Third-Party Neutral (2002), <http://www.cpradr.org/Resources/ALLCPRArticles/tabid/265/ID/622/Model-Rule-for-The-Lawyer-as-Third-Party-Neutral.aspx>.
151 See Etherington and Lee, ‘Ethical Codes and Cultural Context’, 97.
152 See Etherington and Lee, ‘Ethical Codes and Cultural Context’. Problems with national regulatory authorities enforcing international or foreign ethical rules are explored in greater detail in Chapter 3.
153 Catherine A. Rogers, ‘Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration’, 23 Mich. J. Int’l L. 341, 396 (2002); M. McCary, ‘Bridging Ethical Borders: International Legal Ethics with an Islamic Perspective’, 35 Tex.Int’l L.J. 289, 294 (2000).
154 See The Declaration on the Principles of Professional Conduct of the Bars and Law Societies of the European Community (1977) [hereinafter Declaration of Perugia]. The Perugia Principles contained only ‘eight brief ethical pronouncements’, which have been described as an obscure ‘discourse on the function of a lawyer in society’ and ‘the nature of the rules of professional conduct’. See Mary C. Daly, ‘The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by US and Foreign Lawyers’, 32 Vand. J. Transnat’l L. 1117, 1159 (1999).
155 See Etherington and Lee, ‘Ethical Codes and Cultural Context’, 97.
157 For a detailed survey of reform efforts to date, see Laurel S. Terry, ‘A “How To” Guide for Incorporating Global and Comparative Perspectives into the Required Professional Responsibility Course’, 51 St. Louis U. L.J. 1135, 1153 (2007).
158 For example, the Statement of Core Principles provides such broad admonitions as: ‘An independent legal profession, without which there is no rule of law or freedom for the people.’ While obviously an important principle, absent a meaningful definition of what constitutes ‘independent’ or ‘rule of law’, the general principle provides little meaningful guidance.
159 Andrew Boon and John Flood, ‘Globalization of Professional Ethics? The Significance of Lawyers’ International Codes of Conduct’, 2 Legal Ethics 29, 55–56 (1999) (arguing that the absence of discourse about the international codes is a barrier to the globalization of professional ethics); H.W. Arthurs, ‘A Global Code of Ethics for the Transnational Legal Field’, 2 Legal Ethics 59 (1999) (discussing the difficulties of creating a universal or global code of ethics and criticizing such codes as ineffective).
161 Laurel S. Terry, ‘An Introduction to the European Community’s Legal Ethics Code Part I: An Analysis of the CCBE Code of Conduct’, 36–37.
162 Article 2.4 of the CCBE Code of Conduct provides: ‘When practising cross-border, a lawyer from another Member State may be bound to comply with the professional rules of the Host Member State. Lawyers have a duty to inform themselves as to the rules which will affect them in the performance of any particular activity.’
163 See paras 3.23–3.29. The omission, particularly from earlier codes, may also reflect the fact that the proliferation of international tribunals is a relatively new development.
164 The full text of Rule 8.5 is as follows: ‘(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.’ As analysed in greater detail in Chapter 9, this rule is problematic as applied to international arbitration because the jurisdiction in which a tribunal sits is often unrelated to the underlying dispute. Moreover, as described in the pages that follow, the ethical rules of most jurisdictions do not regard their rules as applying to foreign counsel in locally seated international arbitrations. See also Chapter 9.
165 See Ucheora Onwuamaegbu, Panel on International Arbitration of Investment/Contract Dispute, ‘Is There a Need for Guidelines for Counsel Participation in International Arbitration?’, State Bar of Texas International Law Section’s 21st Annual International Law Institute, 6 Mar. 2009, p. 2 (‘Neither the ICSID Rules nor those of UNCITRAL … provide any guidelines for the participation of representatives of parties in proceedings, including provisions on disclosures or possible disqualification.’).
167 Arman Sarvarian, ‘Common Ethical Standards for Counsel Before the European Court of Justice and European Court of Human Rights’, 23 Eur. J. Int’l L. 991, 992 (2012).
168 According to Principle 1.2, the Hague Principles only apply to ‘an international arbitral tribunal in a proceeding in which one or more of the parties is a state’. This definition would include investor-State arbitration, but not international commercial arbitration, unless it included a State party.
169 The ILA Principles recognize in precatory language ‘that each international court and tribunal has its own characteristics and functions and that each international court may need to adapt principles to fit its particular circumstances and practices’. For example, Principle 6.2 states that counsel may engage in pre-testimonial communication with a witness, but ‘subject to such rules as the international court or tribunal may have adopted’.
170 The IBA Guidelines for Party Representation are analysed in greater detail in Chapters 3 and 6.
171 The international concept of ‘counsel of choice’ began as a political right that should be guaranteed to criminal defendants. See International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. Np. 16 (Vol. 21), U.N. Doc. A/RES/2200A(XXI), at 14(3)(d) (16 Dec. 1966). It has subsequently been recognized more generally as a feature of procedural fairness in any adjudicatory proceeding.
172 For example, the International Court of Justice website explains that ‘there is no special International Court of Justice Bar, there are no conditions that have to be fulfilled for counsel or advocates to enjoy the right of arguing before it except only that they must have been appointed by a government to do so’. See International Court of Justice, How the Court Works, <http://www.icj-cij.org/court/index.php?p1=18p2=6>.
173 In re Certain Solder Joint Pressure Pipe Fittings, CDA-USA-98-1904-03, 2000 WL 1125288 (NAFTA Binat Panel 3 Apr. 2000) (dismissing a motion to disqualify a non-lawyer from acting as counsel of record for one of the parties to the review, noting that ‘… parties are entitled to be represented by counsel, … and to be represented by counsel of choice. The Tribunal regularly permits parties to be represented by persons other than lawyers, such as trade consultants, economists and accountants’); Charles N. Brower and Stephan W. Schill, ‘Regulating Counsel Conduct Before International Arbitral Tribunals’, in Bekker et al. (eds.), Making Transnational Law Work in a Global Economy: Essays in Honour of Detlev Vagts (2010) 488, 505–06.
174 Arbitration Act, (1996) § 36 (UK).
176 William W. Park, ‘National Law and Commercial Justice: Safeguarding Procedural Integrity in International Arbitration’, 63 Tul. L. Rev. 647, 680 (1989) (documenting a ‘scramble among Western European nations’ to compete for international arbitration business); Sir Michael J. Mustill, ‘Arbitration: History and Background’, 53 (‘[O]ne must take note of the efforts made by individual nations to make their arbitration laws … more attractive.’).
177 See Turner (East Asia) Pte. Ltd v Builders Fed. (H.K.) Ltd, (1988) 2 MLJ 280 (Sing.).
178 Turner (East Asia) Pte. Ltd v Builders Fed. (H.K.) Ltd, 280.
179 Chiang, ‘Foreign Lawyer Provisions in Hong Kong and the Republic of China on Taiwan’, 329 n. 114; David W. Rivkin, ‘Restrictions on Foreign Counsel in International Arbitrations’, XVI Y.B. Comm. Arb. 402, 403–07 (1991).
180 Chiang, ‘Foreign Lawyer Provisions in Hong Kong and the Republic of China on Taiwan’, 329 n. 114.
181 Statutes of the Republic of Singapore, Legal Profession Act (Cap. 161) § 34A(1)(a) (1994). Michael A. Polkinghorne, ‘More Changes in Singapore: Appearance Rights of Foreign Counsel’, 22 J. Int’l Arb. 75, 75 (2005); Chiang, ‘Foreign Lawyer Provisions in Hong Kong and the Republic of China on Taiwan’, 329 n. 114; Michael A. Polkinghorne, Note, ‘The Right of Representation in a Foreign Venue’, 4 Arb. Int’l 333, 334–37 (1988).
182 Polkinghorne, ‘More Changes in Singapore: Appearance Rights of Foreign Counsel’, 76.
183 2010 International Arbitration Survey: Choices in International Arbitration, Sch. of Int’l Arb., Queen Mary University of London (2010), 20, <http://www.arbitrationonline.org/research/2010/index.html>. The Survey also attributes the rising success of Singapore to promotional activities and active involvement of more arbitral institutions. Presumably, these latter developments would not have had much traction were it not for the opening up of international arbitration matters in Singapore to foreign lawyers.
184 Tadao Fukuhara, ‘The Status of Foreign Lawyers in Japan’, 17 Jap. Ann. Int’l L. 21 (1973), in Hideo Tanaka (ed.), The Japanese Legal System: Introductory Cases and Materials (1976) 591, 591–607; Chan, Kay-Wah, Lawyers in Japan: A Profession Caught in the Current of Reforms (2–5 June 2005) (paper presented at the annual meeting of The Law and Society, J.W. Marriott Resort, Las Vegas, NV).
185 Luke Nottage, ‘Japan’s New Arbitration Law: Domestication Reinforcing Internationalisation’, 7 Int’l A.L.R. 54, 55 (2004) (citing The Special Measure Law concerning the Handling of Legal Practice by Foreign Lawyers, promulgated as Law No. 65 of 1996 on 12 June 1996, taking effect on 1 September 1996).
187 Global Business Immigration Handbook § 12:17.
188 Birbrower, Montalbano, Condon & Frank, P.C. v Superior Court, 949 P.2d 1 (Cal. 1998).
189 See Birbrower, Montalbano, Condon & Frank, P.C. v Superior Court, 7.
190 See Cal. Code Civ. Pro.§ 1282.4 (1 Jan. 2011); Cal. R. Ct. (2009), R. 9.43(a) (amended and renumbered effective 1 Jan. 2007, adopted as Rule 983.4 by the Cal. Sup. Ct., effective 1 July 1999). Notably, California imposes relatively strict obligations on attorneys licensed in other states, including an obligation to file a detailed certificate with the State Bar of California and obtain written approval by the arbitral tribunal. See Cal. Code Civ. Pro.§ 1282.4 (a) and (c). Notably, repeat appearances ‘shall be grounds for disapproval and disqualification from serving as an attorney in the arbitration in which the certificate was filed’. See Cal. Code Civ. Pro.§ 1282.4 (d).
191 See David D. Caron and Leah D. Harhay, ‘A Call to Action: Turning the Golden State into a Golden Opportunity for International Arbitration’, 28 Berkeley J. Int’l L. 497 (2010).
192 For instance, in order to improve New York as an attractive forum for international arbitration, the New York State Bar Association (NYSBA) recently created a task force to review New York law as an international standard and the use of New York as a neutral forum for resolving international disputes in arbitration. The task force’s number one recommendation was in support of establishing a permanent Center for International Arbitration in New York. See NYSBA, ‘State Bar Association Calls for Creation of a Permanent Center for International Arbitration in New York’ (28 June 2011), <http://www.nysba.org/CustomTemplates/Content.aspx?id=6590>; NYSBA, Final Report of the New York State Bar Association’s Task Force on New York Law in International Matters (18 April 2011), <http://www.nysba.org/InternationalReport/>. Florida recently won a bid to host the International Council for Commercial Arbitration (ICCA) biennial international conference, and the Florida legislature recently passed a bill standardizing international arbitration rules based on the UNCITRAL Model Law. See Fla. Stat. Ann. § 684 (West 2010); MIAS Blog, Miami Wins Bid for ICCA 2014 (31 May 2011), <http://miamiinternationalarbitration.com/blog/?p=11>; Santiago A. Cueto, ‘International Arbitration: Florida Adopts UNCITRAL Model Law, Miami to Benefit the Most’ (20 May 2010),<http://www.internationalbusinesslawadvisor.com/2010/05/articles/international-arbitration/international-arbitration-florida-adopts-uncitral-model-law-miami-to-benefit-the-most/>.
193 Committee on Professional Ethics of the Association of the Bar of the City of New York, ‘Recommendation and Report on the Right of Non-New York Lawyers to Represent Parties in International and Interstate Arbitrations Conducted in New York’, 49 Record of the Association of the Bar of the City of New York 47 (1991).
194 See Rules Regulating the Florida Bar, Rule 1-3.11 (c). (Appearances by Non-Florida Lawyer in an Arbitration Proceeding in Florida) (lawyers permitted to appear by this rule shall be subject to these rules regulating the Florida bar while engaged in the permitted representation, including, without limitation, Rule 4-5.5).
196 MiamiInternationalArbitration Society, <https://miamiinternationalarbitration.com/us/arbitration/arbitration-in-miami/overview>. See also Fl. St. Bar R. 1-3.11 (West 2009): (a) Non-Florida Lawyer Appearing in an Arbitration Proceeding in Florida. A lawyer currently eligible to practice law in another United States jurisdiction or a non-United States jurisdiction may appear in an arbitration proceeding in this jurisdiction if the appearance is: (1) for a client who resides in or has an office in the lawyer’s home state; or (2) where the appearance arises out of or is reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice; and (3) the appearance is not one that requires pro hac vice admission.
197 Christopher Lau and Christin Horlach, ‘Commentary: Arbitration in Asia? Yes—But Where?’ 23-SPG Int’l L. Practicum 43, 44 (2010); Jahan P. Raissi, Note, ‘Arbitrating in Thailand’, 16 Hastings Int’l & Comp. L. Rev. 99, 119 (1992). (‘The Working of Aliens Act … prohibits the business person’s counsel from presenting a case before an arbitral tribunal, and if strictly construed, the business person’s or a company’s own counsel cannot even assist or advise the client regarding Thai arbitral proceedings in general.’)
198 This is an opinion in a still-evolving survey apparently being conducted by the International Bar Association. Thailand International Trade in Legal Services, <http://www.ibanet.org/PPID/Constituent/Bar_Issues_Commission/ITILS_Thailand.aspx>. It is ambiguous what enforcement in Thai courts necessarily means, particularly since in many cases the place of enforcement may not be well-settled when arbitral proceedings are commenced.
199 See Lau and Horlach, ‘Commentary: Arbitration in Asia? Yes—But Where?’, 44.
200 Dyalá Jimenez-Figueres and Angie Armer Ros, ‘Notes on the New Chilean Law on International Arbitration’, 20-7 Mealey’s Int’l Arb. Rep. News Brief 13, 25–26 (2005) (suggesting that ‘parties to an arbitration in Chile should include Chilean counsel in their representation as a matter of caution’).
201 See Born, International Commercial Arbitration (2014) 2914.
202 See Dr Nils Eliasson, ‘A Brief Introduction to Arbitration in Hong Kong’, 23-SPG Int’l L. Practicum 46, 49 (2010). (Chinese law may still prohibit foreign registered lawyers from representing parties in CIETAC arbitration in mainland China without being accompanied by a Chinese attorney, as part of a general prohibition against foreign attorneys interfering with ‘Chinese legal affairs’.)
203 Waiguo Lushi Shiwusuo Zhuhua Daibiao Jigou GuanliTiaoli (外 国 律 师 事 务 所 驻 华 代 表 机 构 管 理 条 例) [RulesonImplementation of the Regulations on the Administration of Foreign Law Firm Representative Offices in China] (promulgated by the State Council, 19 Dec. 2001, effective 1 Jan. 2001), art. 32(4) defined ‘China Legal Business’ to include addressing the application of Chinese law and the issuance of opinions or evaluations of Chinese law as agent in international arbitrations. Article 32(4) was narrowed by a decision of the Ministry of Justice, which prohibited representatives of foreign law firms from commenting in the capacity of agent on the application of Chinese law. In the Reply to the Letter Submitted by CIETEC on Recommendations Related to ‘the Rules on Implementation of the Regulations on the Administration of Foreign Law Firm’s Representative Offices in China by the Ministry of Justice’, the Ministry of Justice provided an explanation on the revisions as follows: ‘Basically, local co-counsel is needed for questions of Chinese law but foreign law firm representatives may nevertheless serve as agent in international arbitrations in China. These regulations have no force outside China because foreign lawyers are not acting as representatives of foreign law firm representative offices in China.’ Lester Ross of Wilmer Hale, email of 5 Aug. 2010.
204 Nils Eliasson, ‘A Brief Introduction to Arbitration in Hong Kong’, 49.
205 For an in-depth analysis of the development of the legal profession in China, see Ethan Michaelson, Unhooking from the State: Chinese Lawyers in Transition (2003).
206 Sida Liu, ‘Globalization as Boundary-Blurring: International and Local Law Firms in China’s Corporate Law Market’, 42 Law & Soc’y Rev. 771, 783–84 (2008) (discussing sanctions imposed by the Chinese Ministry of Justice on Beijing-based foreign lawyers representing clients in an international arbitration case in China in 2005).
207 ‘Law and globalization: Not entirely free, your honour’, Economist, 29 July 2010.
208 See ‘Law and globalization: Not entirely free, your honour’, Economist, 29 July 2010. In an ironic twist, as the Indian legal market remains formally closed to foreign law firms, it is itself infiltrating foreign legal markets by soaking up outsourced legal services. Mary C. Daly and Carole Silver, ‘Flattening the World of Legal Services? The Ethical and Liability Minefields of Offshoring Legal and Law-Related Services’, 38 Geo.J. Int’l L. 401, 404–05 (2007).
209 See Krishnan, ‘Globetrotting Law Firms’, 60.
211 See ‘Madras HC issues notice in PIL seeking action against foreign law firms’.
212 The Madras Court was correct that the Indian legal profession’s protectionism backfired. Instead of preserving the representation of parties in Indian arbitrations for Indian lawyers, it has resulted in an off-shoring of arbitration—parties that might otherwise arbitrate in India instead seat their arbitrations in Singapore, or elsewhere.
213 See Soibam Rocky Singh, ‘Delhi HC Issues Notice on Working of London Court of International Arbitration in Delhi’, Law et al. News, 31 May 2011, <http://www.lawetalnews.com/NewsDetail.asp?newsid=4087>. For an interesting analysis of the history of legal services and current regulatory climate in India, see Krishnan, ‘Globetrotting Law Firms’.
214 A month after the alleged notice, the LCIA had yet to receive a summons and no papers had been filed at the LCIA India registrar by the court or plaintiffs. See Ben Lewis, ‘Indian Arbitration: The Road Less Traveled’, Law.com (20 June 2011), <http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=12024978742798slreturn=1>; Sebastian Perry, ‘LCIA faces lawsuit in India’, Global Arb. Rev. (3 June 2011), <http://www.globalarbitrationreview.com.ezaccess.libraries.psu.edu/news/article/29518/lcia-faces-lawsuit-india/>. Moreover, many Indian arbitration specialists question the seriousness of the lawsuit. See Edward Machin, ‘LCIA India told to change name by Delhi lawyers’, <http://www.cdr-news.com/arbitration-and-adr/112-articles/1120-lcia-india-told-to-change-name-by-delhi-lawyers>.
216 Kyungho Choi, ‘Korean Foreign Legal Consultants Act: Legal Profession of American Lawyers in South Korea’, 11 Asian-Pac. L. & Pol’y J. 100, 104 (2010) (internal citations omitted); see also John E. Morris, ‘Germany Invaded!’ Am. Law., Sept. 2000, 32.
217 Until relatively recently, the explanation was that local law firms could not provide the services desired by foreign investors in certain sectors. See Geoffrey C. Hazard Jr and Angelo Dondi, Legal Ethics: A Comparative Study, 56 (noting that China ‘wanted to expand its legal profession at a rapid rate, but [lacking] the university apparatus and cadres of graduates to do so[,] … has admitted people with basic literacy and substantial experience in practical office affairs to the profession of lawyer’); Eliasson, ‘A Brief Introduction to Arbitration in Hong Kong’, 49; Andrew Godwin, ‘The Professional “Tug of War”: The Regulation of Foreign Lawyers in China, Business Scope Issues and Some Suggestions for Reform’, 33 Melb. U. L. Rev. 132, 143 (2009) (‘[I]n the early 1990s … there were no local law firms with a national presence within China, let alone firms with an overseas presence, that could compete successfully with international law firms in the lucrative foreign direct investment (FDI) market.’).
218 See Yves Dezalay and Bryant G. Garth (eds.), Global Prescriptions: The Production, Exportation and Importation of a New Legal Orthodoxy (2002); Krishnan, ‘Globetrotting Law Firms’, 60 (2010).
219 Robert L. Nelson, ‘Are We There Yet? Empirical Research and the Predicted Demise of Large Law Firms: An Introductory Essay’, 22 Geo. J. Legal Ethics 1249, 1254–55 (2009).
220 Carole Silver et al., ‘Between Diffusion and Distinctiveness in Globalization: US Law Firms Go Glocal’, 22 Geo. J. Legal Ethics 1431, 1448–51 (2009).
221 Silver et al., ‘Between Diffusion and Distinctiveness in Globalization’, 1450.
222 Several scholars argued that: Steven Mark, ‘Harmonization or Homogenization? The Globalization of Law and Legal Ethics—An Australian Viewpoint’, 34 Vand. J. Transnat’l L. 1173, 1179–80 (2001); Susan Marks, ‘Empire’s Law’, 10 Ind. J. Global Legal Stud. 449, 451–52 (2003).
223 See Silver et al., ‘Between Diffusion and Distinctiveness in Globalization’, 1433. This conclusion does not take into account the allocation of administrative power or profits as among so-called ‘local’ partners and partners in the home country. While employment in branches of multi-national firms may pay at the high end or above the compensation level of top local firms, foreign attorneys employed in foreign offices are often paid less than those in UK or US offices where the firm originates. One reason for this pay differential can be the lower cost of living in most jurisdictions outside London, New York, and other hubs of multi-national firms.
224 Silver et al., ‘Between Diffusion and Distinctiveness in Globalization’, 1433.
227 Lucy Greenwood and C. Marc Baker, ‘Getting a Better Balance on International Arbitration Tribunals’, 28(4) Arb. Int’l 653 (2012) (‘A major cause of the under-representation of women on international arbitration tribunals is the lack of women making it thorough to the upper eschelons of the legal profession.’). This observation suggests that, as women get further in the law firm pipeline, the number of arbitral appointment for women may increase. Nevertheless, other more subtle obstacles undoubtedly also exist, such as unconscious gender bias. See Greenwood and Baker, ‘Getting a Better Balance on International Arbitration Tribunals’, 662.
229 See Prachi Shrivastava, ‘LCIA yet to bag 10th case as high-powered Hiranandani arbitration resolved with Cherie Blair’; AP Shah, ‘Karanjawala’.
230 See Rogers, ‘Lawyers Without Borders’, 1078–79; Judith A. McMorrow, ‘Creating Norms of Attorney Conduct in International Tribunals: A Case Study of the ICTY’, 30 B.C. Int’l & Comp. L. Rev. 139 (2007).