A labyrinthine man never seeks the truth,

but only his Ariadne.

Friedrich Nietzsche

Moral agency is embedded in roles[.]

Alasdair MacIntyre

7.01  This chapter addresses the development of international substantive ethical rules as part of the larger project of ethical self-regulation in international arbitration. Chapter 6 examined how ethical self-regulation in international arbitration would be consistent with global governance trends in other areas, such as financial interest rates, safety regulations, or airline seatbelt protocols. Research in those areas demonstrates how development of international rules can be affected by political decision-making,¹ can affect the perceived legitimacy of the rule maker,² and ultimately the efficacy of the resulting rules. In these other contexts, development of international standards for particular industries is often framed in neutral terms that ostensibly address the technical and scientific superiority of one standard over another.³ In debates over technical and scientific standards, an ostensibly neutral yardstick can reduce, even if it does not eliminate, the potential politicization of global rule-making processes.⁴

7.02  Developing the substance of global legal ethics involves all the same challenges as for other areas of global governance, but without a neutral yardstick and with its own distinct challenges. The object of regulation for professional ethics is uniquely amorphous. Ethical regulation aims not so much at people, their status, or their performance of specified physical activities, such as manufacturing a product or managing traffic patterns. Professional ethics instead aims at regulating professional conduct. National systems vary, sometimes dramatically, in how they characterize the nature and scope of professional conduct that is subject to ethical regulation.

7.03  What is regulated as professional conduct, and subject to ethical rules, in some legal systems may be treated exclusively as a matter of procedure, customary practice, client relations, or strategic decision-making in other systems. Even preliminary questions about how to (p. 275) characterize the conduct that is the subject of regulation can require adopting culturally derived value judgments. For example, characterizing pre-testimonial communication with witnesses as a practice of ‘witness preparation’ makes German prohibitions seem reactionary, while characterizing it as ‘witness tampering’ makes the American perspective seem lawless.

7.04  Just as Ariadne’s thread guided Theseus in finding his way out of the labyrinth after he killed the Minotaur, this chapter provides an intellectual filament to trace a path through these conceptual complexities. It provides a framework for identifying the range of conduct to be regulated, and a methodology for developing substantive standards for the international arbitration that avoids selection among competing national ethical rules.⁵

7.05  This theory, called the Functional Thesis, reorients discussion about the nature of professional ethics. It avoids using as a starting point culturally bounded moral ideals or misleadingly empty platitudes that purport to be universal moral ideals. At a descriptive level, it provides a culturally neutral tool for illuminating why different national legal systems have adopted different ethical rules. At a prescriptive level, the Functional Thesis provides guidance about how to develop (or defend) the substantive content of ethical standards for international arbitration.

7.06  The first section of this chapter constructs a model of the Functional Thesis, which is premised on the link between morality and role. This section elaborates the thesis and distinguishes it from other role-based theories of legal ethics. This Functional Thesis illuminates, in the second section, why different national systems have adopted conflicting ethical norms identified in Chapters 2, 3, and 4. In sum, those systems have assigned to arbitrators, attorneys, and expert witnesses different functional roles. The third section of this chapter examines how the Functional Thesis can aid in developing international ethical norms, for example, for attorneys and experts. It also reveals how critiques about the ethics of party-appointed arbitrators and party-appointed experts are instead better understood as critiques about their functional roles. This distinction has important implications for developing effective ethics for international arbitration and avoiding ethical mismatches that can undermine instead of strengthen its efficacy and legitimacy.

7.07  The starting point for the Functional Thesis is Alasdair MacIntyre’s observation that moral agency ‘is embodied in roles’ assigned to actors, who are ‘mutually interdefined in terms of types of relationship’.⁶ Under this view, situation-specific obligations cannot be analysed outside the context of a specific role. For example, whether a person has a moral obligation to (p. 276) feed a certain child depends on whether the person is the child’s parent, neighbour, babysitter, or a complete stranger (and perhaps even whether the child is on the street in front of the person’s house or in a far-off land).⁷ The ethical obligations of individuals in each of these situations differ because they perform different functional roles in relation to the child. The difference between a parent and a passer-by seems so obvious, it is unsurprising that they would have different ethical obligations.

7.08  The problem with legal ethics is that the actors come with seemingly universal titles—‘lawyer’, ‘judge’, ‘expert’, or ‘arbitrator’. Why would a lawyer in the United States have different ethical obligations than a Chinese lawyer, or a German lawyer, or a Chilean lawyer? These apparently universal descriptives, however, mask the fact that there are many different versions of each of these categories of actors. In other words, different legal regimes—both judicial and arbitral—assign these actors different roles, even if they use the same or similar titles to describe them. For example, there appears to be an easy linguistic translation of ‘attorney’ or ‘advocate’ in most languages.⁸ This linguistic translation belies deeper differences that are revealed when the question ‘“who is a lawyer?” is posed by efforts to make comparisons across categories not corresponding to formal divisions on the national level’.⁹ Similarly, it is assumed that anyone who is called an ‘arbitrator’ functions in the same role as any other arbitrator, and that they are all bound by the same ethical obligations. Titles do not always align with functional roles, and titles in themselves have little to do with applicable ethics.

7.09  In contrast to simple titles, functional roles establish the broad outlines of professional obligations. Interrelational functional roles necessarily set certain conduct as completely out of bounds, unethical, and inappropriate. For example, since the role of an advocate is to represent a party’s interests in a case before a tribunal, the advocate cannot perform this function effectively if the advocate represents both sides in the same case.¹⁰Meanwhile, a judge’s role is to decide a case based on the legal and factual arguments presented, and that role could not be performed if the judge were permitted to preside over a case in which he or she were also a party.¹¹

7.10  While role can establish that certain conduct is completely off limits, it generally cannot distil complex ethical quandaries down to a single undeniable, controlling rule or algorithm, (p. 277) such that compliance with the rule would obviate the need for any personal ethical reflection. The interrelational role performed by a particular actor instead establishes a range of choices that would facilitate fulfillment of that person’s role and helps identify the factors to be taken into account in making ethical decisions.

7.11  In professional contexts, ethical codes crystallize a critical fraction of that range into a mandatory framework. Resolution of the other issues, which occupy what remains of that range after the mandatory rules are carved out, is left to the personal and professional judgment of the professional. In sum, ethical rules and codes simply make certain choices impermissible and frame the enquiry for other choices.

7.12  These observations lead to an important distinction: Ethical codes do not establish the role of a professional. They guide and facilitate performance of an already-established professional role. The starting point for developing ethical standards, therefore, is to define the role of the agent. As will be seen, this distinction provides a methodology for developing international ethics in light of conflicting national ethical rules. It also provides background for examining how certain criticisms aimed at party-appointed arbitrators’ ethical conduct are better understood as objections to the roles assigned to them.¹²

7.13  The blueprints for the functional role of actors within a particular adjudicatory regime are the procedural arrangements of that regime.¹³ Procedures, in turn, are chosen to reflect and promote the values that underlie the larger legal culture or adjudicatory goals of a particular legal system. Procedures emerge out of and reify the culture of a society, meaning ‘those beliefs about how to properly relate to each other that are deeply held, widely shared, and persistent over time’¹⁴ and the political structures that enshrine those cultural values. Procedures are, then, integrally linked to the cultural and political values of the legal system for which they were designed.

7.14  Looking through the other end of the spyglass, cultural and political values motivate procedural choices; those procedural choices in turn determine the advocate’s inter-relational role in a particular adjudicatory setting; inter-relational roles then shape the outlines of the ethical norms that apply to those moral agents, such as judges or attorneys. The flow of relationships might be visualized as a descending hierarchy of tiers that begins with cultural and political values, which determine procedures, which in turn determine role, and finally determine ethical obligations. Under this framework, national ethical regimes can ultimately be understood as reflecting procedurally-determined and culturally-bound differences in the values of national legal systems.

7.15  Although described as a unidirectional flow, the tiers are linked in a feedback loop. Each of the lower tiers feeds back up to legal culture, which then reinforces the roles assigned to actors through procedures, and the ethical obligations of those actors. In this respect, (p. 278) procedures and related roles are ‘both an expression of a culture’s values and a mechanism for maintaining those values’.¹⁵ As Professor Damaska explains:

[D]ominant ideas about the role of government inform views on the purpose of justice, and the latter are relevant to the choice of many procedural arrangements. Because only some forms of justice fit specific purposes, only certain forms can be justified in terms of the prevailing ideology.¹⁶

Legal culture, in other words, ‘both shapes and is shaped by the conduct of [a] community’s members’.¹⁷

7.16  In an adjudicatory system, conduct essential to performance of a particular role is embedded in procedures and reinforced by ethical norms that inform and facilitate practice pursuant to those procedures. Understanding the causally inter related links that connect cultural values to legal ethics provides a more nuanced and realistic understanding of why different legal systems impose different ethical obligations on professional conduct. Differentiating national ethical rules are not simply a matter of cultural relativism. There are instead concrete practical effects of cultural relativism that make certain ethical standards well-suited as a practical matter to certain systems, but not others.

7.17  One example of what can go wrong in defining ethical obligations when the role of the actor to be regulated has not been well defined is by looking at some misguided efforts at developing arbitrator ethics. Instead of a clear role definition, some national courts and authorities have instead sought to rely on misplaced analogical reasoning. In some instances, the analogy is predicated on comparisons between judicial and arbitrator ethics.¹⁸ The reasoning behind reliance on a judicial referent is that arbitral decision-making substitutes for judicial decision-making, so arbitral impartiality should be measured against the base model of judicial impartiality.

7.18  The problem with the analogy to judicial ethics is that it produces more confusion than clarity. As Carrie Menkel-Meadow explains:

Many think that the Judicial Code of Conduct can be used as a benchmark for ethical standards and professionalism in situations where lawyers play adjudicative roles. I do not agree, since the judge has a permanent role, which allows him to be at arm’s length from parties on a regular basis. Arbitrators who may depend on parties choosing and paying them may be closer to lawyers seeking clients in some respects, while resembling judges in others.¹⁹

Even if the same term, ‘impartiality’, is used in both contexts, it is not readily transferable between the two. While adjudicators in both contexts seem to be performing the same task (i.e., resolving disputes), they have, as will be analysed later in this chapter, been assigned different roles in performing that task. The distinction in role is manifested in certain features of their professional profile.

7.19  Judges are sequestered from the professional community by rules that prohibit professional affiliations,²⁰ whereas arbitrators are often, preferably, drawn from the ranks of active (p. 279) professionals. Judges are randomly assigned to individual cases²¹ and litigants are discouraged from forum shopping, but parties deliberately and individually select arbitrators who are presumably predisposed toward their case.²² Judges are expressly precluded from receiving even nominal or indirect compensation from cases they preside over,²³ but arbitrators typically earn lavish fees. As an ultimate affront to notions of judicial impartiality, the availability of arbitrators’ fees can depend in part on the substantive outcome of arbitrators’ own decisions.²⁴ In sum, when arbitrators step into judges’ ethical shoes, they seem to be wearing them on the wrong feet.

7.20  There are also the many functions that have ethical obligations or implications, but are clearly not translatable from one role to the other. For example, international commercial arbitrators are generally regarded as having an obligation to maintain the privacy, if not the confidentiality, of the proceedings²⁵ in the absence of party consent to disclosure. Judicial adjudication, meanwhile, is an inherently public activity. In the United States and many other countries, judges are constitutionally compelled to open courtroom proceedings to the public.²⁶ US judges are ethically restricted regarding the nature and type of political activities in which they can engage,²⁷ but such restrictions make no sense for arbitrators. These examples illustrate why ethical obligations cannot simply be transplanted. They must be derived instead from clearly defined roles of the decision-maker, either judge or arbitrator.

7.21  There have been similarly befuddled suggestions that the role of the advocate-lawyer could be a basis for extrapolating arbitrator ethics.²⁸ The primary rationale for using attorney (p. 280) ethics is that although the attorney and the arbitrator perform different tasks, the same actor is performing both tasks and therefore could be regulated by the same source. This identity of actors is what has inspired some efforts by national bar authorities, described in Chapters 2 and 6, to incorporate arbitrator ethical obligations into their codes of conduct for attorneys.²⁹

7.22  Despite performing different tasks, there seem to be some similarities between the relevant ethical obligations on lawyers and arbitrators. Attorneys must be free from conflicts of interest, just as arbitrators must be free from bias. Attorneys must conduct ‘conflict checks’ before accepting representation, just as arbitrators have a ‘duty to investigate’ before accepting an appointment.³⁰ As Carrie Menkel-Meadow points out, however, ‘[o]ur conventional rules of ethics are particularly inapposite when lawyers serve in quasi-judicial roles as arbitrators…’.³¹ Attorney ethics were developed for those acting in the role of advocate, where the hallmark is loyalty to, not independence from, a client.³² The role of lawyer is fundamentally different than the role of adjudicator, even if both tasks can be undertaken by the same person.³³ Development of arbitrator ethics requires, as a starting point, a clear definition of the role of the arbitrator within the larger category of adjudicators.

7.23  Arbitrators and judges are both subsets of the larger category of adjudicators. Attempts to rely on judicial ethics to define arbitrator ethics wrongly presume that arbitrators, who are sometimes even called ‘private judges’, are a subset of the category of judges. This analysis leads to the misleading judicial referent described earlier, and to the conceptual confusion that follows. The process of defining the role of the arbitrator must begin, instead, by defining more generally the role of the adjudicator and, with that definition in hand, explaining the nature and effects of variations within that general category on arbitrator ethics.

7.24  All adjudicators share certain core features, which derive from the nature of adjudication itself. Although the ultimate aspirations and limits of adjudication have been subject to heated debate,³⁴ Lon Fuller’s classical definition of adjudication provides the core for a universal (p. 281) definition.³⁵ Fuller defined adjudication as ‘a process of decision that grants to the affected party a form of participation that consists of the opportunity to present proofs and reasoned arguments’.³⁶ The three constitutive elements or ‘ordering principles’ of adjudication under this definition are reason, adversarialism,³⁷ and separateness,³⁸ although these terms themselves are the subject of significant debate.³⁹ Fuller uses these features to distinguish adjudication from other forms of social ordering, such as contract and political decision-making.⁴⁰

7.25  While Fuller provides a critical core, to distinguish adjudication from other forms of dispute resolution and political decision-making, some additional features are needed.⁴¹ Adjudication is ‘authoritative’, meaning that the ultimate decision is final and binding on the parties.⁴² This feature distinguishes adjudication from other forms of alternative dispute (p. 282) resolution, such as mediation,⁴³ or even political decision-making, in which voters or politicians are completely free to reconsider and revise their initial decision.

7.26  A final essential feature of adjudication is that it necessarily implies a jurisdictionally bounded decision.⁴⁴ In this sense, ‘jurisdiction’ refers both to the power of bodies to subject persons or things to adjudicative processes, as well as implicit limitations on those bodies’ decision-making power.⁴⁵ These notions of authoritative and jurisdictionally bounded decision-making imply the closely related requirement that adjudication exist within a ‘system’,⁴⁶ meaning within a series of interrelated units that work together to effectuate its outcomes.⁴⁷

7.27  A fully operational definition of adjudication, therefore, is a process to facilitate final, binding, and jurisdictionally bounded decisions that operates within a system and is based on the opportunity of participants to present proofs and reasoned arguments to third parties. This basic definition is subject to innumerable particularized interpretations within various systems, which may choose to invigorate one feature while muting another. Any process that completely lacks one of these features, however, cannot be considered adjudication.

7.28  This core definition of adjudication, in turn, implies certain fundamental procedural functions that must be performed by an adjudicator in relation to other actors in the adjudicatory process. The archetypal adjudicator can be described as a third party who is empowered to render authoritative and reason-based decisions after considering arguments from both sides.⁴⁸With this definition of an adjudicator’s functional role, it becomes clear that to (p. 283) perform this functional role an adjudicator must, at some level, have an ethical obligation to be impartial. Bringing reasoned analysis to bear on legal problems necessarily requires being detached enough to engage in rational analysis of the problem⁴⁹ as well as an ability to consider arguments from both sides. These functions necessarily imply an obligation of impartiality.⁵⁰ Absent impartiality, outcomes would not be based on reasoned application of legal rules or premised on parties’ evidence and arguments, but on the personal interests or preferences of the decision-maker.

7.29  The fact that an adjudicator’s functional role is jurisdictionally bounded implies an obligation to respect the limits of their jurisdiction.⁵¹ The ethical nature of this obligation explains why errors regarding jurisdiction are often described in terms that imply moral or ethical judgment, whereas incorrect substantive results are generally described simply as errors.⁵² Finally, the authoritative nature of adjudicatory outcomes, as well as their existence within a larger system, imposes on adjudicators an obligation to preserve the integrity and legitimacy of the adjudicatory system in which they operate.⁵³ These responsibilities to the system might translate into obligations to perform certain administrative functions,⁵⁴to avoid certain external activities that are inconsistent with their adjudicatory function,⁵⁵ and to avoid the ‘appearance of impropriety’.⁵⁶In sum, the Functional Thesis reveals that the (p. 284) ethical obligations of an adjudicator derive from the interrelational role that is assigned to the adjudicator.⁵⁷

7.30  These core features of the adjudicator’s role and their attendant ethical obligations are universal, but only when discussed in the most abstract generalities. Outside this fundamental definition of adjudication, an infinite number of potential dispute resolution models can be designed to serve different goals and communities. In crafting these different adjudicatory models, architects of various systems calibrate differently the specific roles assigned to adjudicators in relation to parties and advocates, and as a consequence, adjudicators’ professional ethical obligations in these systems differ.⁵⁸

7.31  To design a system, procedural architects answer a host of questions to determine the salient features of the system: How are individuals selected to serve as adjudicators? How are adjudicators selected for individual cases?⁵⁹ What are they being asked to decide?⁶⁰ On what information should their decisions be based? What is the role of parties and their counsel in the process?⁶¹ How will the decision-maker evaluate the information presented? What is the decision-maker’s constituency? And, relatedly, what forces constrain decision-making? How does the decision-maker relate to underlying political and governmental structures?⁶² What recourse is available against decision-maker error or abuse?⁶³ What are the normative (p. 285) objectives of adjudication?⁶⁴ And how will the legitimacy and correctness of the outcomes be measured? The answers to all of these and related questions are the procedures that undergird different models of adjudication.

7.32  Although the responses to all of these questions can affect the role of adjudicators, the primary determinants are: the manner in which they are selected and appointed to their positions as decision-makers, the nature of the decisions they are asked to render, and the procedural arrangements through which they make their decisions. The next section examines the generic advocate’s role. The sections that follow then use the Functional Thesis to analyse how the roles of adjudicators and advocates shift in different national legal systems.

7.33  An advocate is a representative of a party who is retained to bring professional knowledge and expertise to facilitate the party’s presentation of its case before a neutral tribunal. Embedded in this definition is an inherent contradiction that underlies the attorney’s functional role.⁶⁵ On the one hand, as a facilitator within the adjudicatory process, advocates occupy a quasi-official role as agents in the process of justice. This role imposes on them certain obligations to courts, the legal profession, and the public at large. On the other hand, advocates are retained by one party to pursue victory over the opposing party.⁶⁶ In this capacity, advocates owe to their clients duties that can be at odds with their other obligations to courts, the profession, and the public.⁶⁷

7.34  The interrelationship between these competing sets of obligations is where most debates about attorney ethics occur. These competing obligations can be conceptualized as a Venn diagram, composed of two overlapping circular zones. Each sphere is composed of the various particular ethical obligations. Obligations relating to fairness and truthfulness are in the (p. 286) one sphere, and obligations relating to loyalty and confidentiality are in the other sphere.⁶⁸ In the centre of each sphere are the universally accepted ethical rules, such as those against bribing judges⁶⁹ or representing opposing sides in a single dispute.⁷⁰ The overlap between the two spheres represents those areas in which the obligations are in tension with or directly conflict with each other. Thus, for example, the collision between the obligation to maintain client confidences, on the one hand, and the obligation to avoid making false statements of fact to a tribunal, on the other hand, is located in the shaded area in the middle of Figure 7.1.

The legal systems of the world agree on the general structure of the Venn diagram in Figure 7.1, and the core principles of legal ethics in the centre spheres, because these features derive from the universal features of the advocate’s role, described earlier. It is thus not surprising that all systems impose on attorney’s basic commitments to truthfulness, fairness, confidentiality, and loyalty, and essentially acknowledge that there can be some tension between them. Figure 7.1 illustrates the basic structure underlying legal ethics as it applies to a generic advocate. There is, however, no such thing as a generic advocate.

7.35  Each adjudicatory system assigns unique functional roles to advocates in relation to other actors in the system, such as judges and arbitrators, opposing counsel, clients, and witnesses.⁷¹ (p. 287) As a consequence of these different roles assigned to advocates, outside of the nuclear centres of the ethical obligations represented in Figure 7.1, national systems diverge on how expansively they construct the diameter of each surrounding sphere, and in how they engineer the overlap between them. If a system casts the lawyer’s role as primarily that of agent to the client, that system will cast an expansive sphere of obligation onto the client, which often overshadows the attorney’s obligations to the court and society. Other systems may cast the attorney as more of an intermediary who facilitates justice of the State, and thus construct almost the reverse relationship between the spheres.⁷² Still others may treat attorneys as occupying a role between facilitator of justice and agent of the client, and draw the spheres as roughly equivalent.⁷³

7.36  This section takes the Functional Thesis laid out in the last two Sections and puts it to the test. Through comparative analysis, it uses the Functional Thesis to illuminate the seemingly enigmatic reasons why different national systems impose sometimes radically different ethical obligations. For pragmatic reasons, this comparative analysis concentrates on the distinctions between roles of judges, attorneys, and experts in the US system, on the one hand, and on a generalized version of a Continental civil law system on the other.⁷⁴

7.37  In national legal systems, the judge⁷⁵ is the starting point for determining the roles of counsel, witnesses, and parties.⁷⁶ In civil law systems, such as those in Germany and Italy, the judge can be described as the engine of the adjudication machine. At least according to the ‘official portrait’, the civil law judge ‘mechanically applies legislative provisions to given fact situations’.⁷⁷ ‘At least according to the internal folklore, judicial interpretation of [civil] codes does not involve the judges in a process of law creation.’⁷⁸ This perception of judges (p. 288) as the appliers (rather than makers) of law is both evidenced and reinforced by the formulaic, bureaucratic style of civil law judicial opinions, usually taking the form of a string of phrases sounding in a detached tone and connected by ‘whereas’s’.⁷⁹ A judicial opinion, with its rhythmic recitals and studied detachment, is the voice of the judicial institution obedient to legislative commands, not the personal judgment of an individual adjudicator.⁸⁰ Consistent with this function, many systems limit or prohibit judges’ ability to issue dissenting opinions.⁸¹

7.38  Scholars have demonstrated that indiscriminate adherence to this ‘official portrait’ can be overly simplistic. It can mask civil law judges’ innovativeness and occasionally expressly policy-oriented decision-making.⁸² Nevertheless, the ‘official portrait’ suggests the intellectual heritage of the role of the civil law judge,⁸³ which inevitably continues to shape at some level perceptions of legitimacy for a civil law judge.

7.39  The role of the civil law judge is honed through the process of judicial education and selection in civil law countries.⁸⁴ With regard to the education and selection of civil law judges:

Civil law judges are part of the civil service. Judges enter a career of judging and advance through the judicial hierarchy. They are educated and trained to be judges. In particular, their education and training equips them to work with language and to engage in the rational and scientific finding of the law. They then gain experience as judges. The judicial hierarchy allows judicial authorities considerable control over lower level judges … Their training and experience creates an elite, if anonymous, corps of adjudicators.⁸⁵

As a result of this education and appointment process, judicial selection is regarded less as a political act than as a technical selection of the most qualified personnel to perform the (p. 289) judicial function. This assumption is reinforced in the process for promoting civil law judges. The early stages of judicial decision-making are guided by senior judges and career advancement is determined by senior judges’ evaluations.⁸⁶

7.40  At a more realistic level, outside the stiff confines of the ‘official portrait’, when called on to fill gaps, civil law judges employ a range of methodologies, including a resort to policy. Even when civil law judges act more creatively outside their ‘official portrait’ and venture into law-making activities, their function still varies significantly from that of their common law counterparts.

7.41  As a matter of methodology, civil law judges may pronounce new rules based on policy, but their primary task is to find the legal solution that is consistent with the Code and contributes to the ‘manifestation of the “organic whole”’.⁸⁷ In this endeavour, their primary source is scholarly doctrine,⁸⁸which they use in search of an interpretation that coheres with the larger framework of the Code.⁸⁹Methodologically, civil law judges may look to prior judicial decisions for guidance but, even if done regularly, reliance on prior judicial decisions does not confer on judicial decision-making the same force of law that it has in common law systems through the doctrine of stare decisis.⁹⁰

7.42  At a procedural level, civil law judges are much more active managers than their American counterparts, even under modern US trends that demonstrate a shift toward a more managerial model.⁹¹ In countries such as Germany and France, the judge is the one who schedules, sets the agenda for, and presides over a series of hearings,⁹²decides what proof will be presented and in what order,⁹³ appoints experts, and questions (p. 290) witnesses.⁹⁴ The judge is expected to conduct a pre-hearing review of the files and to come to the case with knowledge of the issues and ideas about how the case should proceed.⁹⁵Furthermore, ‘[a]s the case progresses[,] the judge discusses it with the litigants, sometimes indicating provisional views of the likely outcome … and sometimes encouraging a litigant to abandon a case that is turning out to be weak or hopeless, or to recommend settlement’.⁹⁶

7.43  These features come together to shape the form of a civil law judge’s role, and it is clear from this role that the civil law judge’s impartiality obligations need not be, and cannot be, the same as those of a US judge. Because a civil law judge is charged with control over witness questioning and is obliged to ‘move the case along’, forceful and insistent questions of witnesses are not a sign of bias, as it might be in the US system.⁹⁷ Given the quasi-collaborative role between judges and lawyers in the civil law system, absolute prohibitions against ex parte communication, which exist in the United States,⁹⁸ are not as necessary.⁹⁹ Judicial statements regarding the relative strengths of each party’s case during proceedings would not be considered an inappropriate violation of impartiality obligations, and prior knowledge of facts involved in a case are not necessarily grounds for disqualification.¹⁰⁰ Decisions, however, that veer away from doctrine toward politically motivated outcomes might more readily be regarded as more improper than they would be in the United States.

7.44  In relation to a judge who is gathering facts, shaping issues, and dutifully applying the law, the role of the civil law attorney might be described as primarily that of a ‘guide’ to the court.¹⁰¹ The role of guide is, in many respects, collaborative. Some nations make this collaborative, semi-official status explicit, such as in Germany where attorneys are considered (p. 291) part of a concept called öffentliche Rechtspflege (public administration of law)¹⁰² and in Greece the ‘Lawyers’ Code’ characterizes lawyers as ‘unsalaried Public Servants’.¹⁰³

7.45  Advocates’ collaborative role is also recognized and reinforced through a range of traditions, such as a host of ‘rights and privileges’ historically enjoyed by Greek attorneys, including special access to public service or administrative offices at times closed to the lay public.¹⁰⁴ This link to the government used to be reinforced in many civil law countries by regulations that fix fee schedules, which prescribe particular fees for particular services. Microregulation of attorney fees by the government implied that attorneys were performing state-coordinated functions, not personal services in a predominantly private arrangement.¹⁰⁵ Similarly, geographic restrictions in Germany and France, which until relatively recently admitted a lawyer only to a particular bar and a single court (for example, the trial court in the bar of Paris or the first appellate level in Hamburg),¹⁰⁶ seemed aimed at ensuring that courts have as regular a roster of attorneys as they do judicial personnel. Even the requirement that civil law lawyers appear in court wearing a robe can be understood as a symbolic reflection of their quasi-official role.¹⁰⁷

7.46  Consistent with this semi-official role, civil law attorneys are assigned an obligation to be ‘independent’ from their clients.¹⁰⁸ This obligation means that civil law attorneys are not expected to present a completely unvarnished and uncompromising version of their clients’ positions,¹⁰⁹as Fuller’s partisan advocates would.¹¹⁰ Instead, through their independent professional judgment, they mediate their client’s most aggressive position, presenting a pre-screened and more restrained view of their client’s case to the civil law judge.¹¹¹(p. 292)

7.47  Through understanding the different role assigned to advocates in relation to courts and their clients in civil law systems, it is clear that the ethical spheres depicted in Figure 7.1 must shift to accommodate these different inter-relational roles. When attorneys are cast in the role of guide to the court, the sphere comprised of obligations relating to fairness and truth must expand, protruding over a somewhat shrunken sphere of obligation to the client, as shown in Figure 7.2:

In this context, attorney independence from the client becomes necessary to keep attorneys focused on their role as guide. As can already be anticipated, the spheres are drawn quite differently for US attorneys and, in the redrawing, the nature of the duty of independence shifts as well.

7.48  In contrast to these civil law arrangements, procedures in the American legal system are built on a model of party contest before a ‘judicial tabula rasa’.¹¹²The American judge (or jury) is supposed to obtain only through the party dialectic all evidence that must be evaluated and legal arguments that must be analysed,¹¹³ and they are expected to remain completely neutral until it is time to render the final judgment.¹¹⁴

7.49  As a consequence of the relatively passive role of decision-makers, attorneys are given an active role in managing the proceedings. The attorney in US litigation gathers evidence for the client’s case, primarily through inquiries for documents and depositions directed at the opposing party. Based on this work, the US attorney shapes the issues for trial and presents (p. 293) evidence at trial, including developing expert testimony and examining and cross-examining witnesses. Because the judge only rules on pre-trial motions that are brought by the parties, attorneys act not as guides, but primarily as clients’ strategists, evaluating and advising when and how various procedural tactics should be used.¹¹⁵

7.50  This understanding of the judge’s role in the trial process illuminates why a US judge’s impartiality may be called into question for asking too many questions of a party’s witness,¹¹⁶ or for expressing opinions during the proceedings about the relative merits of the parties’ cases. Such questions or comments would remove the judge from a position of total detachment and inject him or her into the attorney’s process of developing and presenting the client’s case. It also explains why US prohibitions against ex parte communications are more absolute than in civil law systems—because the decision-maker is expected to be a blank slate on which the parties, in heated contest, draw their dispute, and any stray renderings by one party might unfairly alter the tableau.¹¹⁷

7.51  On the other hand, because US judges have express law-making and policy-creating functions, it is necessary to have their selection and appointment determined through a political process, namely appointment of federal judges by the President with the advice and consent of the Senate.¹¹⁸ For this reason, American notions of judicial impartiality may be more tolerant of the effects of ‘Politics’ with a capital ‘P’ than ‘politics’ with a lower case ‘p’,¹¹⁹ the latter of which may be more prevalent in civil law countries as a result of the institutional pressure from more senior judges.¹²⁰ Unapologetically politicized decisions may injure perceptions of the legitimacy of US judges,¹²¹ but the level of political neutrality embodied in conceptions of the political impartiality of judges in the United States is less than that (p. 294) expected of ordinary civil law judges. In civil law systems, judicial selection and promotion processes confirm that the position of judge is regarded more as a technical vocation than a political activity.¹²²

7.52  The more staunchly partisan role of US attorneys can also be seen as linked to the nature of common law legal methodology and the judge’s decisional role in relation to that methodology. The common law judicial decision is predicated on the ‘mosaic of facts and circumstances presented in their unicity with each case’.¹²³The task of a common law judge is to evaluate counsel’s competing arguments about hyper-factual analogies and subtle distinctions in prior decisional law.¹²⁴The view of each case as presenting a unique scenario, combined with an inherent scepticism about the existence of any single right answer, amplifies the need for the common law judge to distance him or herself from the competing scenarios so that he or she can effectively evaluate them.¹²⁵

7.53  While US judges (and juries) are comparatively passive in their fact-finding role, it is readily acknowledged that US judges make law.¹²⁶ Parties go to court, therefore, not only seeking resolution of an individual dispute, but potentially to effectuate changes in the law.¹²⁷ When judges have the power to make law, the role of the advocate expands from that of strategist who can represent the client’s cause under existing law, to that of strategist (particularly in class and aggregate litigation) and lobbyist, who can urge potential changes in the law.(p. 295)

7.54  This understanding of the role of judges, juries, and attorneys is, to American lawyers and judges, so obvious that it is sometimes difficult for them to imagine that any other regime could properly function. Fuller, and even some more recent scholars, for example, have expressed doubt that a judge in a so-called inquisitorial system could be impartial. Fuller and his co-author John Randall explain:

Any arbiter who attempts to decide a dispute without the aid of partisan advocacy … must undertake not only the role of judge, but that of representative for both of the litigants. Each of these roles must be played to the full without being muted by qualifications derived from the others. When he is developing for each side the most effective statement of his case, the arbiter must put aside his neutrality and permit himself to be moved by a sympathetic identification sufficiently intense to draw from his mind all that it is capable of giving … When he resumes his neutral position, he must be able to view with distrust the fruits of this identification and be ready to reject the products of his own best mental efforts…¹²⁸

The conceptual flaw in Fuller’s analysis is that he defines the judicial role as contingent on US-style partisan advocacy.

7.55  By assuming that the definition of judicial impartiality is the same across systems, Fuller critiques the inquisitorial or civil law model for not properly accommodating a definition that is inconsistent with the role assigned to judges in civil law systems.¹²⁹As David Luban explains, Fuller ‘is presupposing that the enquiry proceeds best by unmuted adversary presentation, in which case, of course, an inquisitorial investigation becomes by definition a mere copy of the real thing’.¹³⁰

7.56  One of the primary benefits of comparative legal analysis is that it can reveal to us our own unacknowledged and hidden assumptions.¹³¹ Here, however, Fuller has succumbed to one of the most common hazards of comparative analysis. Fuller assumes that there is a universal definition of judicial impartiality, or more precisely that the US definition should apply in other systems.¹³² By erroneously concluding that judicial impartiality is impossible in the absence of ‘partisan advocacy’, Fuller fails to recognize that selecting particular (p. 296) characteristics, such as partisan advocacy in the US legal system,portends the results of comparison with other systems.¹³³ To borrow Professor Andrew Huxley’s poignant illustration of this classical problem, the comparison of chalk with cheese necessarily will highlight the question of edibility, while a comparison of chalk with pens will focus on legibility.¹³⁴ By taking partisan advocacy as his starting point for determining judicial impartiality, Fuller fails to adequately define the role of the civil law judge prior to delineating his or her impartiality obligations. Paradoxically, this omission is contrary to Fuller’s own prescription for how ethical norms should be developed.¹³⁵

7.57  When the definition of the civil law judge’s role in relation to the other actors in his or her legal system is properly illuminated—as opposed to being presumed by the shadow of US-style partisan advocates—the distinctive features of the civilian judge’s impartiality obligations become more clear and comprehensible. Going back to the US system, where attorneys are cast as strategists and lobbyists for their clients, the sphere of obligation to clients must be more imposing to accommodate the expansion of this role, as depicted in Figure 7.3:

Under this model, the obligations to the State and the system are partially overshadowed,¹³⁶ and independence shifts to become a mechanism primarily aimed at maintaining distance from the State.

7.58  The models and the roles of various actors described earlier are the frameworks that portend the specific content of national ethical rules. Beginning with the rule about pre-testimonial communication, if witnesses are presented by one party as part of its case,¹³⁷ it seems perfectly reasonable, subject to certain limitations, to permit attorneys to discuss the case with witnesses before they testify. In fact, it is really necessary in order for the litigants to be able to prepare their case. On the other hand, civil law systems could be expected to preclude attorneys from speaking to witnesses because the court is assigned the role of fact gathering and the advocate’s function is primarily to guide the court in that process.¹³⁸ In that context, an attorney would be intruding on the province of the court if the attorney tried to discuss with the witness the facts of the case.¹³⁹ Because there is no pre-trial exchange directly between parties, European civil procedure rules specify that there is no obligation by parties or counsel to provide information to assist an opposing party’s case.¹⁴⁰

7.59  On the other hand, as described in Chapter 3, civil law jurisdictions generally vest attorneys with much greater discretion on delicate issues involving their own conflicts of interest.¹⁴¹This willingness to defer may reflect confidence in the professional independence that attorneys are expected to maintain from their clients. Prior to the adoption of the Council of Bars and Law Societies of Europe (CCBE) Code, individual lawyers’ professional independence was considered sufficient justification for leaving conflicts of interest solely as a matter of an attorney’s personal relationship with the client.¹⁴² Similarly, when advocates act as ‘guide’ to the court, as in civil law systems, there is less concern that extrajudicial information will endanger the validity of the result, which explains the more relaxed ethical standards regarding ex parte communication in civil law systems.¹⁴³

(p. 298) 7.60  By contrast, when advocates are cast in the role of strategist and lobbyist for the client, it is less plausible and less desirable for them to maintain a detached independence from the client. Instead, client confidences take on a new level of importance and necessarily heightened loyalty obligations make even attenuated conflicts of interest impermissible, at least in the absence of client consent.¹⁴⁴ Communication with the client is essential and withholding important communications from a client, such as required under the French doctrine ‘sous la foi du Palais’,¹⁴⁵ would interfere with representation. In their role as lobbyist, creative, aggressive argumentation is more tolerable and may be regarded as necessary. Independence from State institutions, including the courts, meanwhile, becomes all the more important.

7.61  While these broad outlines are helpful, it is also important to acknowledge that the labels do not always accurately reflect the value assigned to particular obligations. Elevating ethical obligations that are necessary to fulfil functional features of an attorney’s role necessarily implies discounting or diminishing competing ethical norms. Acknowledging the trade-off among ethical virtues can seem awkward since ethics are most often discussed as moral absolutes. When, for example, is it OK to be untruthful? When can an attorney righteously betray a client’s loyalty? The result of this awkwardness is that ethical discourse within particular legal systems can become something of a shell game to obscure the costs of particular ethical trade-offs.

7.62  The most obvious example of this phenomenon is the US system, which as discussed previously, procedurally necessitates augmented obligations of loyalty to the client, and as a result diminishes obligations to the court, third parties, and the legal system. To offset this inflated commitment to the client’s objectives, the attorney’s role as ‘officer of the court’ is often given an exalted rhetorical dignity to act as an ‘ethical stabilizer’ and counterbalance, at least rhetorically, the role of zealous advocate.¹⁴⁶ By contrast, in jurisdictions where the court system is used as a forum for advancing governmental policies, as opposed to a wholly independent check on the government, ‘the professional ethic now counteracts pressures reflecting the idea that aggregate state interests must always prevail over narrow individual interests of the client … and the dignity of acting on behalf of a private individual enmeshed in the machinery of justice is likely to be glorified’,¹⁴⁷ at least rhetorically as an ethical ideal. This glorification of the lawyer as the individual’s legal champion may be seen as on the rise in places like China, even as the Chinese government imposes significant pressures on individual attorneys, particularly in criminal and human rights cases, most significantly by requiring an oath of loyalty to the Communist Party.¹⁴⁸

7.63  Ultimately, these differing roles assigned to attorneys reflect the larger cultural values of the societies that produced them. Using very broad brushstrokes to render the opposing scenes, it has been argued that the greater authority of civil law judges reflects in German (p. 299) society a greater acceptance of authority and less tolerance for uncertainty.¹⁴⁹Meanwhile, the expanded control of parties in US proceedings, and the consequent role of the US attorney as strategist and lobbyist, are said to be linked to the American commitment to individualism and an exaltation of due process over efficiency and objectivity in the fact-gathering process.¹⁵⁰

7.64  The political values of particular societies and their effect on their legal systems and procedural choices, is a topic that can and has been extensively tested and debated elsewhere.¹⁵¹The discussion of these issues in this work is necessarily a reductionist distillation of this body of literature, and cannot take full account of historical influences and anomalies. For example, the notion that German society’s preference for order and deference to authority is reflected its civil law tradition may not be generalizable to Italy, another prominent civil law jurisdiction that borders Germany. Anyone who has driven on Italian roads has undoubtedly noticed that Italians appear to have an extraordinarily high tolerance for uncertainty—and even chaos—at least regarding the rules of the road. In addition, the strongest versions of the civil law ideal-type does not necessarily translate well to large commercial settings where there are high stakes and sophisticated lawyers are more proactive.¹⁵² It is also true that procedural cross-pollination has introduced procedural reforms into various systems that blur the outlines of the stark ideal-types described.¹⁵³

7.65  The simplified summary is intended only to indicate, in the broadest of outlines, that there is a causal relationship between cultural and political values, on the one hand, and procedural choices on the other. Acknowledging this link, even only at the level of generality described here, provides a basis for the primary insight of the Functional Thesis that ethical obligations are determined by roles, which are in turn determined through procedural choices. This analysis challenges traditional views that legal ethics derive directly from cultural preferences such that neutral international rules are impossible. While cultural and political values affect legal ethics, those values do not directly produce the ethical rules but are instead mediated (p. 300) through the procedural arrangements of particular adjudicatory systems.¹⁵⁴ These insights provide guidance for prescriptive efforts to create new ethical standards for international arbitration, which is the subject of the next section.

7.66  Until this point, this chapter has used the Functional Thesis to explain why different national systems have adopted different ethical rules. This section examines the Functional Thesis as a prescriptive tool for developing ethical norms for international arbitration. While efforts have already been undertaken to draft such codes, as explored in Chapters 2, 3, and 6, those efforts have largely been the product of pragmatic horse-trading or distillation of existing practices. These efforts have yielded some salutary results, but the absence of a coherent theory or methodology has left some questions unanswered or seemingly unanswerable. A coherent theory and methodology for developing ethics for international arbitration will facilitate debates over the appropriateness of particular rules. It will also lay the groundwork for a more comprehensive and autonomous ethical regime for international arbitration that is, as argued in Chapter 6, independent from national ethical regimes.

7.67  As a prescriptive tool, the aim of the Functional Thesis is not to resolve conflicts among different national ethical rules, but to aid in development of ethics specifically for international arbitration. To that end, the Functional Thesis requires identification of the inter-relational functional roles of actors in international arbitration, meaning those roles that are assigned by the procedural arrangements of international arbitration and that reflect the underlying ‘cultural and political values’ of international arbitration.

7.68  At first blush, the dictates of the Functional Thesis seem difficult to apply to international arbitration. What are the ‘cultural values’ or even more perplexing the ‘political values’ of international arbitration? International arbitration exists between cultural boundaries. It is explicitly intended to fuse multiple, diverse legal cultures, and transcend the politics that can hinder national adjudication of international disputes. It is a system of dispute resolution without geographic borders or a discernible citizenry.¹⁵⁵Increasing cultural diversity is one reason why new ethical guidance is needed, so how can cultural or political values in such a heterogeneous system be identified, let alone inform development of ethical norms?

7.69  Another challenge in applying the Functional Thesis is the procedural flexibility that is the hallmark of international arbitration. Instead of settled procedural arrangements similar to national court rules, institutional arbitral rules only provide skeletal procedures that address primarily commencing arbitration and selecting arbitrators.¹⁵⁶ Beyond these basics, arbitral (p. 301) rules are generally silent with regard to the actual proceedings, including such fundamentals as whether hearings will be held.¹⁵⁷ How can these sketchy outlines of procedural rules guide us in understanding the role of attorneys needed under the Functional Theory to identify relevant ethical obligations that are consistent with that role?

7.70  Notwithstanding these questions and the open texture of international arbitration, there is in fact substantial guidance for formulating ethical obligations for its participants. The starting point for this analysis is the structural, normative goals of international arbitration.

7.71  The first challenge in applying the Functional Thesis in international arbitration is to determine an appropriate analogue for cultural and political values that are the starting point in national regimes. Commentators often refer to an ‘international arbitration culture’, but the content and even proof of existence of such a culture is elusive.¹⁵⁸ Some commentators have attempted to define international arbitration’s ‘culture’ by relying on the hybridized procedures that typify international arbitral proceedings.¹⁵⁹ This approach to defining culture, at least for an adjudicatory regime, is somewhat inverted. As examined previously, in national legal systems, procedural arrangements are distilled from a system’s cultural and political values. Procedures, in other words, may reflect and reinforce the culture on which they are premised, but they do not in themselves establish that culture.

7.72  Given the difficulties in identifying a fixed ‘culture’, for the purposes of applying the Functional Thesis in international arbitration, it makes more sense to identify the normative goals of international arbitration. Just as with national cultural values,¹⁶⁰ the normative goals of international arbitration undergird and reflect the structure of procedural arrangements in international arbitration. These goals can be distilled down to: transnational neutrality, effectiveness, and party autonomy.

7.73  The primary accomplishment of international arbitration, and one of the primary reasons why parties choose international arbitration, is that it ensures neutrality as between competing national cultural values that are manifest in the procedural regimes of their respective legal systems.¹⁶¹ Parties presume, rightly or wrongly, that the national courts of the opposing party (p. 302) would be biased against them. To avoid the potentially biased national courts of their opponents, international businesspersons enter into agreements that prevent national courts from deciding the case and instead place decision-making power in the hands of an arbitral tribunal of their choice.¹⁶² By transferring substantive decision-making from national courts to a private arbitral tribunal, parties obtain a uniquely neutral forum for resolving their disputes.¹⁶³

7.74  Another important goal of international arbitration is to ensure that disputes will be resolved effectively. Because the exercise of judicial jurisdiction over foreign nationals is an exercise of coercive governmental power, and it reaches into the boundaries of foreign States,¹⁶⁴ national court litigation of international private disputes often implicates issues of foreign national sovereignty and international comity.¹⁶⁵ As examined in Chapter 6, the consequence is a range of ‘peculiar uncertainties’ in procedural matters, such as service of process, taking of evidence, enforcement of judgments, and the like.¹⁶⁶One of the most critical advantages of international arbitration over national court litigation, therefore, is that arbitral awards enjoy much higher rates of enforcement.¹⁶⁷

7.75  To achieve the first two goals, neutrality and effectiveness, the modern international arbitration system strikes ‘an exceedingly fine balance between arbitral autonomy and minimum competence for national judicial review’.¹⁶⁸ When the role of national courts is reduced to ensuring that minimal procedural requirements are observed and critical public policies are protected, the effect is elimination of substantive appeal based on errors that arbitrators may make. These first two goals, neutrality and efficacy, mandate the third normative goal of international arbitration—party autonomy.¹⁶⁹

7.76  To compensate for relinquishment of familiar judicial procedures and the right to appeal the substance of arbitral awards, parties are given ex ante control over the arbitral process. (p. 303) The parties create arbitral jurisdiction,¹⁷⁰ select the arbitral tribunal,¹⁷¹and determine the powers of the tribunal.¹⁷²Parties also have the opportunity to require that the tribunal follow certain procedures, which is the other touchstone for applying the Functional Thesis. The interplay between these three goals, like the ‘legal culture’ of national systems, is the background for procedural arrangements in international arbitration. They also provide essential background for application of the Functional Thesis to develop substantive ethical obligations.

7.77  Particularly in light of the often informal, diffuse, and rapidly evolving nature of ethical regulation in international arbitration, the Functional Thesis can provide a useful tool for sorting out the nature of that evolution, and resulting ambiguities and debates over substantive ethical standards. Take for instance the ethical norm, now well accepted in international arbitration, that it is acceptable for counsel to speak to a witness before the witness testifies.¹⁷³ This ethical norm is often characterized as a harmonization of or compromise between common law and civil law traditions.¹⁷⁴ But that explanation is not quite right. How exactly do you compromise or harmonize between being ethical and unethical?

7.78  The Functional Thesis provides a more coherent analytic framework. What is harmonized is not the ethical rules, but the procedures, which evolved to accommodate the normative goals of international arbitration. Under hybridized procedures, most often direct examination is usually submitted by the parties in the form of witness statements,¹⁷⁵ and witnesses who (p. 304) submit statements are generally cross-examined by counsel.¹⁷⁶ During cross-examinations, arbitrators routinely interject limited questions, but more for the purpose of clarifying and filling in gaps in testimony, than developing the initial content of testimony.¹⁷⁷ Some document exchange is usually allowed.¹⁷⁸

7.79  These harmonized procedures promote two normative goals of international arbitration by ensuring that procedures are neutral and by assuring the parties substantial ex parte control over presentation of evidence in their cases.¹⁷⁹Under the Functional Thesis, the interrelational functional roles that derive from these procedures determine a permissible range of ethical obligations to facilitate effective performance of these roles.

7.80  Separating functionally mandated professional obligations from the larger range of possible regulatiory options is helpful in clarifying ongoing ethical debates in international arbitration. On the one hand, those who oppose counsel regulation altogether would be hard pressed to deny the validity of functionally mandated obligations. They may argue that such obligations are so obvious, they need not be written down,¹⁸⁰ or should not be formally enforced. But utilitarian arguments about how to best enforce ethical obligations are on very different ground once the essential function for the underlying obligation must be conceded.

7.81  On the other hand, the Functional Thesis also helps clarify what is at stake in debates over development of new ethical standards. By clarifying which ethical obligations are functionally necessary, the Functional Thesis indirectly identifies those aspects of ethical debates that, not being strictly necessary, would be resolved by reference to cultural preferences or political negotiation. Some examples will help illustrate.(p. 305)

7.82  Going back to the well worn example of pre-testimonial witness communication, the functional roles for counsel described earlier necessarily imply that they must be ethically allowed or even required to speak with witnesses and potential witnesses, both to obtain information and to prepare witnesses for what to expect on cross-examination.¹⁸¹ The participation of attorneys in exchange of documents, meanwhile, also implies some minimal obligations to facilitate that exchange. At a minimum, for these procedures to operate fairly, an attorney would be obliged to refrain from advising a client to destroy all critical documents to avoid having to produce them. They would also necessarily render inapplicable the traditional civil law doctrine of nemo tenetur edere contra se.¹⁸²

7.83  The International Bar Association Rules on the Taking of Evidence in International Arbitration (IBA Evidence Rules) appear to have intuited both the relationship between procedures and ethics, and the limits of what ethical prescriptions can be derived from procedural rules themselves. In their original versions, Article 4(3) of the IBA Evidence Rules provided only that ‘[i]t shall not be improper for a Party, its officers, employees, legal advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective testimony with them’.¹⁸³ When Article 4(3) was revised in 2010, the drafters sought to provide additional guidance by adding that parties could also ‘discuss their prospective testimony with [witnesses]’.

7.84  The IBA Evidence Rules indicated that ‘interviews’ were not ‘improper’. They failed to specify the exact nature of such interview, and indeed greater guidance was surely needed.¹⁸⁴ The Functional Thesis, however, does not necessarily mandate the more specific rule. The comments to Guideline 24 of the IBA Guidelines for Party Representatives in International Arbitration (IBA Guidelines for Party Representatives), meanwhile, provided greater precision, specifying not only interviews but rehearsal of testimony is permitted. Various practical considerations may have led to this rule, including the dominance of US law firms in international arbitration practice. But strictly speaking, the ultimate permissiveness of Guideline 24 is more the product of a political choice than a functionally mandated obligation.¹⁸⁵

7.85  Similarly, critics have challenged the Guidelines for Party Representatives as imposing unnecessary obligations regarding preservation of documents and document exchange.¹⁸⁶A partial answer to these critics is that some obligations on counsel are in fact necessary to (p. 306) facilitate document exchange under hybridized procedures. For the IBA Evidence Rules or other informal document exchange procedures to operate fairly and effectively, attorneys cannot advise clients, intentionally and with ethical impunity, to destroy critical documents in order to avoid having to produce them later. That minimal obligation and some related obligations to participate and advise clients in document production are arguably necessary for attorneys to fulfil the functional role assigned to them. The full range of obligations specified in the IBA Guidelines for Party Representatives, however, are not similarly essential to the attorney’s functional role. They are, in the absence of functional necessity, more accurately understood as the product of a cultural or political choice.

7.86  Another area in which the Functional Thesis provides important guidance is with respect to the ethical obligations of party-appointed arbitrators. Although both party-appointed arbitrators and those presiding over tribunals are called ‘arbitrators’, analysis under the Functional Thesis reveals that they are in fact performing somewhat differentiated functional roles. Most national arbitration laws and arbitral rules implicitly or explicitly impose on all members of arbitral tribunals identical obligations of impartiality, independence, or neutrality.¹⁸⁷ Under the Functional Thesis, variations in the functional roles of party-appointed and arbitral chairpersons necessarily imply at least some distinctions in their ethical obligations.

7.87  As examined previously with regard to the role of adjudicators generally,¹⁸⁸ one of the primary determinants for the role of an adjudicator in a particular system is the process for appointment. Chapter 2 provided an overview of the procedures and criteria for selecting party-appointed arbitrators, and how they differ significantly from those for selecting arbitral chairpersons. To recap, in selecting arbitrators, parties generally engage in extensive research to determine potential arbitrators’ background, experience, decisional history (to the extent available), legal and cultural background, and the like. They often also interview prospective party-appointed arbitrators, but not arbitral chairpersons.

7.88  These procedures are a means of ensuring that party-appointed arbitrators can perform the role expected by the parties. That role is often described as ensuring that the appointing party’s priorities for its case are represented on and fully assessed by the tribunal.¹⁸⁹ In addition, even within the tribunal, through practice and procedural rules, some different functions are (p. 307) assigned to chairpersons. For example, under some arbitral rules, chairpersons are authorized to act autonomously and unilaterally on particular issues.¹⁹⁰ Chairpersons also, as a matter of practice, take the lead in drafting arbitral awards.¹⁹¹ These procedures demonstrate that the functional role of chairpersons is expected to be, and in fact functions as, a leader and tiebreaker on the tribunal. This functional role has important distinctions from the role of party-appointed arbitrators, described earlier. Given the differing roles assigned to these two categories of arbitrators, it follows that they would have somewhat different ethical obligations.

Although pre-appointment interviews are not a universal or universally accepted practice, this Guideline acknowledges that it is an existing practice. More importantly, by referencing inquiries about ‘names of possible candidates for a chairperson’, this Guideline necessarily contemplates that it applies only to party-appointed arbitrators, not to chairpersons (from whom such names could not be solicited). This differentiation exists even though General Standard 5 of the Guidelines on Conflicts states unequivocally, ‘These Guidelines apply equally to tribunal chairs, sole arbitrators and party-appointed arbitrators.’

7.90  Similarly, the International Chamber of Commerce (ICC) Rules implicitly apply different standards of impartiality to party-appointed arbitrators and arbitral chairpersons with respect to nationality. Generally, party-appointed arbitrators can share the nationality of their appointing party, but chairpersons are generally prohibited from sharing the nationality of either party. Although contained in arbitral rules, these are in fact a means of regulating arbitrators’ impartiality.¹⁹⁴ Under these rules, shared nationality is not considered inconsistent with party-appointed arbitrators’ duty of impartiality (and is instead considered an important procedural right for parties). Shared nationality would, however, ordinarily be considered a sign of improper partiality for an arbitral chairperson. In other words, even if party-appointed and chairperson arbitrators are often described as having the same ethical obligations, also with nationality, there are differences in their ethical obligations to facilitate their functional role.(p. 308)

7.91  What this analysis reveals is that what is often characterized as objections about the ethical conduct of party-appointed arbitrators as not sufficiently ‘impartial’ are really objections about their specialized differentiated role, which is determined and facilitated by procedures through which they are appointed. This conclusion, of course, begs the question of whether the role assigned to party-appointed arbitrators is normatively desirable. This question is taken up in Chapter 9. For the purposes of current analysis, the point is simply that given their existing role, and its distinctiveness from arbitral chairpersons and in relation to the parties, different ethical obligations are appropriate.

7.92  Another issue about party-appointed arbitrators that has recently been framed as an ethical issue is publication of dissenting opinions, particularly dissenting opinions by party-appointed arbitrators in favour of or in support of a position taken by the party who appointed the arbitrator. Historically, dissenting opinions were not often conceived of in the abstract as implicating ethical issues. A recent highly-publicized study by leading international arbitrator and scholar Albert van den Berg has attempted to reframe these issues in ethical terms.

7.93  The premise for van den Berg’s concerns about the ethics of dissenting is the finding of the ‘astonishing fact’ that nearly all dissents written by party-appointed arbitrators in the investment arbitrations he studied were written in favour of the party who appointed them.¹⁹⁵ From this observation, van den Berg concludes that dissenting opinions by party-appointed arbitrators are ‘suspicious’ and raise questions about the ‘neutrality of the arbitrator’.¹⁹⁶

7.94  After arguing against various utilitarian justifications for dissenting opinions, van den Berg concludes that dissenting opinions are only appropriate in extraordinary circumstances, such as if ‘[s]omething went fundamentally wrong in the arbitral process’ or the ‘arbitrator has been threatened’ with physical danger.¹⁹⁷ He argues that a dissent would not be justified even if an ‘arbitrator genuinely believes that the majority is fundamentally wrong on an issue of law or fact’.¹⁹⁸ These prescriptions about the conditions under which dissents are ethically appropriate are extrapolated from implied assumptions about the functional role of arbitrators.

7.95  Those assumptions about the role of arbitrators appear borrowed from the functional role of civil law judges. As discussed previously,¹⁹⁹in civil law systems dissenting opinions are historically disfavoured (or prohibited) because in many civil law jurisdictions judges are expected to speak in the unified voice of a judicial institution obedient to legislative commands.²⁰⁰ The role of the international arbitrator, however, does not contemplate a similar role based on institutional obedience.

7.96  As adjudicators, arbitrators necessarily have obligations to repect the limits of their jurisdcition and preserve the integrity and legitimacy of the system in which they operate.²⁰¹In fact, arbitrators are often said to have an obligation to render an enforceable award, an obligation that might be implied from the parties’ arbitration agreement itself. Because they operate at (p. 309) a transnational level, however, arbitrators are not selected and trained to be handmaidens of national legislatures who simply ‘pronouce’ the law. Nor is their role defined as part of a larger institutional judiciary, which is presumed to speak with unanimity. Instead, they are selected based on their personal and professional background, and appointed on an ad hoc basis.

7.97  Given the outlines of this role, the general outlines of ethical obligations regarding dissenting opinions also seem to emerge. On the one hand, arbitrators’ obligations to render enforceable awards in an efficient manner and to uphold the legitimacy of the arbitral process suggests that certain types of dissents would clearly be ethically improper. Among these would be purely self-serving dissents (intended only to aggrandize the reputation of the arbitrator or rack up additional arbitrator fees) or nihilistic dissents (intended to undermine the arbitral process, not simply express a differing view).²⁰²

7.98  On the other hand, dissenting opinions penned for other reasons, including expression of an arbitrator’s personal judgment when it differs in important ways from the rest of the tribunal, would be consistent with the fact that arbitrators are selected by parties based on their individual personal background and judgment. In other words, van den Berg’s prescription that dissenting opinions are inappropriate except to identify criminal or other profound pathologies would seem too restrictive given arbitrators’ role.

7.99  Again, as with party-appointed arbitrators’ role more generally, this sketch of ethical obligations relating to dissenting opinions turns on assessments about how useful (or disruptive) dissenting opinions are in relation to the overarching goals of international arbitration. As with the functional role of party-appointed arbitrators, the utility of dissenting opinions is discussed in greater detail in Chapter 8.

7.100  Functional roles are sensitive to evolutionary pressures because they are inherently utilitarian and tied to the procedural rules of international arbitration, which can change dramatically from arbitration to arbitration. Ethical expectations, however, are more constant over time, even as the original role to which those obligations were tethered has slipped from its moorings. New functional roles may portend new ethical obligations, but it is not always certain that those new obligations will be readily accepted as legitimate. Because they connote larger issues of morality, ethics can be more ‘sticky’ than utilitarian functional roles. This ‘stickiness’ explains why practices regarding presentation and cross-examination of witnesses changed before related ethics expressly authorizing pre-testimonial communication.

7.101  Nevertheless, understanding the link between procedure, role, and ethics can help ease the confusion that may otherwise prevail. Although formally developed as a theory in this chapter, the underlying insights of the Functional Thesis have already been an implicit guide in international arbitration’s move toward ethical self-regulation. As surveyed in earlier chapers, several important ethical innovations were first introduced through procedural rules. Before attorney ethical obligations were articulated as such, there were procedures for disclosure and challenge.²⁰³ Before counsel ethics were formally addressed, the IBA Evidence (p. 310) Rules built in a rule about the ethics of pre-testimonial contact with witnesses disguised as a rule of procedure. With expert witnesses, although there has not been any formal effort yet to regulate them, the new 2010 IBA Evidence Rules attempt to distinguish the differing functional roles of tribunal-appointed and party-selected experts, and apply (with some missteps) disclosure obligations commensurate with those roles.²⁰⁴

7.102  One challenge in applying the Functional Thesis to ethics in international arbitration is that procedural rules can change, often significantly, from one international arbitration to another. For arbitrators, the procedural flexibility, shifting roles, and resulting changes in ethical obligations are already contemplated in the IBA Guidelines on Conflicts. As already noted, they include exceptions if the parties have agreed to non-neutral party-appointed arbitrators. They also acknowledge that ‘in certain specific kinds of arbitration, such as maritime or commodities arbitration’ consistent with industry ‘custom and practice’ parties may ‘frequently … appoint the same arbitrator in different cases’.²⁰⁵ In keeping with these differing procedures, the IBA Guidelines acknowledge that different disclosure obligations may apply as long as all parties in the arbitration are familiar with the applicable customs and practices.

7.103  For counsel, when procedures deviate signficiantly from those provided in the IBA Evidence Rules, in the short and medium term, the onus will be on individual arbitral tribunals to make individualized, ad hoc determinations about appropriate standards, For example, in an arbitration in which parties have decided to follow more traditional civil law style procedures, with witnesses being determined and questioned principally by an arbitrator, an ethical allowance for practice question-and-answer may be inapposite, and even general interviews may be considered an unwarranted intrusion.

7.104  In the future, the potential for significant procedural variation may mean that, instead of a single code for international arbitration, conduct rules for counsel will need to come in the form of multiple menus that are tied to procedural options. For these reasons, arbitral institutions like the London Court of International Arbitration (LCIA), rather than a trade organization like the IBA, may be better suited to provide ethical guidance that tracks the procedural defaults most commonly used in arbitrations administered under their rules. Such an approach would be consistent with how ethics develop for other international tribunals. For example, although both international criminal tribunals with many similar procedures, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court have developed separate codes of ethics.²⁰⁶

7.105  This need for individually tailored rules presents peculiar challenges for international arbitration. Even among cases managed by one arbitral institution, procedures may vary enough to alter functional roles. As noted in Chapter 6, a self-regulatory regime for counsel ethics should be primarily developed and enforced at the international level. It may be difficult, however, to induce national bar authorities to authorize the substitution of inherently ambiguous and flexible international arbitration ethics for counsel in place of fixed national ethical rules. While this challenge seems daunting, it would not necessarily be any more difficult than it was to have States cede to international arbitral processes control over such essential regulatory interests as antitrust, securities fraud, and corruption.