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Part II Staking Out Theoretical Boundaries and Building the Regime, 7 Ariadne’s Thread and the Functional Thesis

From: Ethics in International Arbitration

Catherine A. Rogers

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

(p. 274) Ariadne’s Thread and the Functional Thesis

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.

A. A theory of professional ethics

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

1. Determining professional roles

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.

2. The role 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.

3. Defining the advocate’s role

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

4. The Functional Thesis in comparative perspective

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

a. Role and ethics in the civil law ideal type

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.

b. Role and ethics in the US model

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.

(p. 297) c. Ethical obligations in comparative perspective

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.

B. The Functional Thesis as a prescriptive tool

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.

1. The Functional Thesis in international arbitration

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.

a. The 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.

b. Applying the Functional Thesis

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.

i. The Functional Thesis and party-appointed arbitrators

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.

7.89  Although denied at a rhetorical level, distinctions between the ethical obligations of party-appointed arbitrators and arbitral chairpersons are implicitly acknowledged and reinforced in some ethical prescriptions that move beyond generic terms like ‘impartiality.’ For example, if the accepted, established procedural practice is for pre-appointment inverviews of party-appointed arbitrators,192 but not chairpersons, those practices necessarily require related ethical obligations and prohibitions. This intuition is confirmed in the IBA Guidelines on Conflicts, which provide:

[T]he arbitrator [is not disqualified by, or required to disclose, the fact that he or she] has had an initial contact with the appointing party or an affiliate of the appointing party (or the respective counsels) prior to appointment, if this contact is limited to the arbitrator’s availability and qualifications to serve or to the names of possible candidates for a chairperson and did not address the merits or procedural aspects of the dispute.193

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.

ii. The Functional Thesis and the ethics of dissenting opinons

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.

C. Conclusion

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.


3  Tim Büthe and Walter Mattli, The New Global Rulers: The Privatization of Regulation in the World Economy (Princeton, 2011) 45.

4  Even if political influence is reduced, other non-substantive factors such as financial support and organizational motivation can affect outcomes. Büthe and Mattli, The New Global Rulers 45.

5  The proposals of this book, and particularly the Functional Thesis, are limited to adjudicatory settings. There are similar, though distinct, issues that arise regarding regulation of transnational legal practice more generally. For some proposals regarding regulation of transnational legal practice, see Catherine A.Rogers, ‘Cross-Border Bankruptcy as a Model for Regulation of International Attorneys’, in Making Transnational Law Work in a Global Economy: Essays in Honour of Detlev Vagts (Cambridge University Press, 2010); Laurel S. Terry, ‘Creating an International Network of Lawyer Regulators: The 2012 International Conference of Legal Regulators’, 18 The Bar Examiner (June 2013); Laurel S. Terry, et al., ‘Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology’, 80 Fordham L. Rev. 2661 (2012).

6  Alasdair MacIntyre, ‘What Has Ethics to Learn from Medical Ethics?’ 2 Phil. Exchange 37, 46 (1978).

7  This example is borrowed from Ted Schneyer’s insightful work, Ted Schneyer, ‘Moral Philosophy’s Standard Misconception of Legal Ethics’, 1984 Wis. L. Rev. 1529, 1534; see also Vincent Luizzi, A Case for Legal Ethics (1993) (arguing that lawyers’ norms are forged within a social practice and derived from role conceptions (the lawyer as advocate, negotiator, advisor, etc.) rather than from vague starting points such as John Rawls’ ‘original position’); Ted Schneyer, ‘My Kind of Philosopher: A Lawyer’s Appreciation of Joel Feinberg’, 37 Ariz. L. Rev. 10 (1995).

8  The term ‘advocate’, and its counterparts in other Western European languages (i.e., the French avocat and avoué, the Italian avvocata, the Spanish abogado, the Swedish advokat, or the Polish adwocacka) have common historical origins. See Linda S. Spedding, Transnational Legal Practice in the EEC and the United States 88 (1987).

9  Philip S.C. Lewis, ‘Comparison and Change in the Study of Legal Professions’ in Richard L. Abel and Philip S.C. Lewis, (eds.) Lawyers in Society, Volume Three: Comparative Theories (1989) 27–79, 32; see also Kelly Crabb, ‘Providing Legal Services in Foreign Countries: Making Room for the American Attorney’, 83 Colum. L. Rev. 1767, 1770 and n. 13, 1779–82 and nn. 62–82 (1983) (Note) (describing the various national designations for persons who perform legal functions).

10  For a more precise definition of the advocate’s role, see paras 7.33–7.35.

11  For a more precise definition of the judge’s role, see paras 7.23–7.33.

13  See Judith Resnik, ‘Tiers’, 57 S. Cal. L. Rev. 837, 839 (1984) (arguing that procedure has normative content reflected in the features of procedural models and the structure of decision-making). Other factors that affect the role of the attorney are rules of evidence and cultural traditions.

14  See Oscar G. Chase, ‘Legal Processes and National Culture’, 5 Cardozo J. Int’l & Comp. L. 1, 8 (1997); see also Geert Hofstede, Culture’s Consequences (Sage Publications, 1980) 25; Roger Cotterrell, ‘The Concept of Legal Culture’, in D. Nelken (ed.), Comparing Legal Cultures (Dartmouth, Aldershot, 1997).

15  See Chase, ‘Legal Processes and National Culture’ 9.

16  Mirjan R. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986) 11.

17  Joshua Karton, The Culture of International Arbitration and the Evolution of Contract Law (2013) 19.

18  See, e.g., Luxembourg Code of Civil Procedure, Art. 378; Portuguese Law on Voluntary Arbitration, Art. 10(1); Quebec Code of Civil Procedure, Art. 942.

19  Carrie Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’, 27 Fla. St. U.L. Rev. 153 n. 49 (1999).

20  For example, in the United States, ‘[u]sually, by virtue of a statutory provision or a rule of court, a judge of a court of record is prohibited from practicing law’. 46 Am. Jur. 2d Judges § 48 (2004).

21  Jonathan R. Macey, Judicial Preferences, Public Choices, and the Rules of Procedure, 23 J. Legal Stud. 627, 630 (1994); Emerson H. Tiller and Frank B. Cross, ‘A Modest Proposal for Improving American Justice’, 99 Colum. L. Rev. 215, 216 (1999).

22  ‘[T]he law struggles mightily, and generally successfully, to prevent judicial forum shopping … In arbitration, by contrast, something akin to forum shopping—the search for a panel with the array of experience and skills sought by the parties—is not only permitted but encouraged.’ Francis O. Spalding, ‘Selecting the Arbitrator: What Counsel Can Do’, in What the Business Lawyer Needs to Know About ADR (Commercial Law and Practice Course Handbook Series No. 770, Practicing Law Institute, 1998) 351, 353.

23  In the United States, the principle has been held to preclude an old practice of calculating judges’ incomes based on the number of convictions they presided over. See Tumey v Ohio, 273 U.S. 510, 523 (1927) (concluding that under this arrangement, the judge would have a ‘direct, personal, substantial pecuniary interest’ in the outcome of the case).

24  See William W. Park, ‘Bridging the Gap in Forum Selection: Harmonizing Arbitration and Court Selection’, 8 Transnat’l L. & Contemp. Probs. 19, 50 (1999) (‘Presumably arbitrators will be more likely than courts to find jurisdiction, since arbitrators get paid if they hear a dispute.’); 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) (arguing 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’).

25  Gary B. Born and Ethan G. Shenkman, ‘Confidentiality and Transparency in Commercial and Investor-state International Arbitration’, in Catherine A. Rogers and Roger Alford (eds.), The Future of Investment Arbitration (Oxford University Press, 2009) 5.

26  See Richmond Newspapers, Inc. v Virginia, 448 U.S. 555, 581 n. 18 (1980) (concluding that the public has a qualified First Amendment right to access criminal trials).

27  Shirley S. Abrahamson and Robert L. Hughes, ‘Shall We Dance? Steps for Legislators and Judges in Statutory Interpretation’, 75 Minn. L. Rev. 1045, 1088 (1991) (noting that judges are ethically prohibited from engaging in political activities because ‘[t]he public expects the courts to work above the tangle of partisan politics’).

28  See, e.g., Schmitz v Zilveti, 20 F.3d 1043, 1048 (9th Cir. 1994) (tying an arbitrator’s obligation to investigate possible conflicts of interest to his status and ethical obligations as a lawyer); see also Geoffrey C. Hazard, Jr., ‘When ADR Is Ancillary to a Legal Practice, Law Firms Must Confront Conflicts Issues’, in 12 Alternatives to the High Cost of Litigation (1994) 147, 147 (‘Applying this rule [regarding conflicts of interest] to [mediation], a law firm engaging in ADR practice must observe the rules of ethics—particularly the rules concerning conflict of interest—in the ADR work and the other practice, considering them as a single practice.’); John Yukio Gotanda, ‘Setting Arbitrators’ Fees: An International Survey’, 33 Vand. J. Transnat’l L. 779, 801–6 (2000) (arguing that Model Rules 2.2 and 5.7 might apply to attorneys acting in the capacity of arbitrator).

29  See paras 2.93–2.96 and 6.113–6.114.

30  Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’ 183–4.

31  Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’ 162; see also Carrie Menkel-Meadow, ‘The Lawyer as Consensus Builder: Ethics for a New Practice’, 70 Tenn. L. Rev. 63, 63–84 (2002) (analysing how the functional role of advocates differs from various dispute resolvers).

32  Lawyers’ duty of loyalty and tolerance for lawyers’ independence are not universal. For a comparative analysis of the attorney’s duty of loyalty, see Rogers ‘ Fit and Function in Legal Ethics: Developing A Code of Conduct for International Arbitration’, 23 Mich. J. Int’l L. 341, 368–70.

33  One attorney might be bound by two different sets of professional obligations—one when he or she is acting in the role of advocate and another when he or she is acting as a decision-maker. The multiplicity of ethical obligations is a product of the fact that ‘no one is ever an abstract moral agent’. Rogers, ‘Fit and Function in Legal Ethics’ 381.

34  See, e.g., Abram Chayes, ‘The Supreme Court, 1981 Term-Foreword: Public Law Litigation and the Burger Court’, 96 Harv. L. Rev. 4 (1982); Abram Chayes, ‘The Role of the Judge in Public Law Litigation’, 89 Harv. L. Rev. 1281 (1976); Owen Fiss, ‘The Social and Political Foundations of Adjudication’, 6 Law & Hum. Behav. 121 (1982); Owen Fiss, ‘The Supreme Court, 1978 Term-Foreword: The Forms of Justice’, 93 Harv. L. Rev. 1 (1979).

35  See Lon L. Fuller, ‘The Forms and Limits of Adjudication’, 92 Harv. L. Rev. 353, 369 (1978). As Jonathan Molot has pointed out, ‘[A]ny victory Chayes enjoyed over Fuller, and any defeat suffered by Fuller, was only partial. Chayes may have succeeded in discrediting Fuller’s arguments regarding the types of disputes courts could handle (which Fuller dubbed adjudication’s “limits”), but he did not discredit Fuller’s observations regarding the adjudicative process (which Fuller dubbed adjudication’s “forms”).’ Jonathan Molot, ‘An Old Judicial Role for a New Litigation Era’, 113 Yale L.J. 27, 36 (2003).

36  Fuller, ‘The Forms and Limits of Adjudication’ 369.

37  Fuller’s definition of ‘adversarialism’ is framed narrowly in terms of the uniquely US-style ‘partisan advocate’. While a dispute is, by definition, founded on adverse positions that must be advocated and advanced by the parties and their counsel, it is not necessarily true that that function must take the form of US-style ‘partisan advocacy’. The accentuation of a culturally defined adversarialism prevents Fuller’s definition from having cross-cultural, universal potency. One possible explanation for Fuller’s cultural blinders is that although he averred to be defining adjudication in ‘the very broadest sense’, he was really only attempting to define the meaning of adjudication within the framework of the US Constitution. See Fuller, ‘The Forms and Limits of Adjudication’ 353.

38  Fuller and many other scholars of procedure use the term ‘impartiality’, but in an imprecise way that conflates two distinct concepts: the moral agent’s role and the ethical requirements that derive from that role. The term ‘separateness’ connotes the status or role of a decision-maker in relation to the parties, whereas ‘impartiality’ connotes the resulting mental state or conduct that should flow from that status.

39  For example, like the term ‘impartiality’, the term ‘adversarialism’ has multiple connotations. Fuller and other more contemporary scholars of US procedure ascribe an intracultural meaning to the term, while comparativist scholars use the term to designate intercultural differences, particularly to contrast ‘inquisitorial’ systems on the Continent. The former uses ‘adversarial’ to designate the dialectic ideal underlying litigation as a form, whereas the latter uses the term to emphasize the fact that the parties, not the judge, controls the gathering of evidence and presentation of proofs. Compare Fuller, ‘The Forms and Limits of Adjudication’ 383 (‘It is only through the advocate’s [partisan] participation that the hearing may remain in fact what it purports to be in theory: a public trial of the facts and issues.’) with Francesco Parisi, ‘Rent-Seeking Through Litigation: Adversarial and Inquisitorial Systems Compared’, 22 Int’l Rev. L. & Econ. 193, 193 (2002) (‘Scholars of comparative civil procedure often contrast American and Continental European legal systems by reference to the distinctive functions fulfilled by judges and lawyers in the two legal traditions. A distinction is often drawn between “adversarial” and “inquisitorial” procedural systems.’). In elaborating a theory of adjudication, the term is used neither as an ideal nor a culturally defined preference, but as a descriptive heuristic of one of the ‘valued features’ of any adjudication, which can be amplified or muted in relation to other competing features as demanded by a particular adjudicatory system.

40  Fuller, ‘The Forms and Limits of Adjudication’, 366–69.

41  Many of these ‘additions’ actually derive from or can be found in Fuller’s writings on the subject. While Fuller’s descriptive formulations are useful, it does not necessarily follow that these formations derive from, or are inextricably linked to, the natural law theories as Fuller suggests. For a discussion of the natural law foundations of Fuller’s theories, see generally Robert G. Bone, ‘Lon Fuller’s Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Litigation’, 75 B.U. L. Rev. 1273, 1290 (1995) (arguing that Fuller ‘assumed there were natural principles that guided the ordering process’).

42  This feature is implicit in Fuller’s description of the products of adjudication, judicial decisions, as ‘authoritative determinations’, see Fuller, ‘The Forms and Limits of Adjudication’ 368, as well as some of his other writings. See Lon L. Fuller, ‘Collective Bargaining and the Arbitrator’, in Mark L. Kahn (ed.), Collective Bargaining and theArbitrator’s Role: Proceedings Of The Fifteenth Annual Meeting National Academy of Arbitrators (BNA, 1962) 29–33. See also Geoffrey C. Hazard, Jr., ‘From Whom No Secrets are Hid’, Tex. L. Rev. 1665, 1670 (1998) (‘[A]n adjudicative system by definition requires a principle of finality.’).

43  David B. Lipsky and Ronald L. Seeber, ‘In Search of Control: The Corporate Embrace of ADR’, 1 U. Pa. J. Lab. & Emp. L. 133, 133 n. 2 (1998) (suggesting that the basis for distinguishing mediation from arbitration is whether the process is non-binding or binding); David A. Newton, ‘Alternative Dispute Resolution in Australia’, in Karl J. Mackie (ed.), A Handbook of Dispute Resolution: ADR in Action (Rouledge. 1991) 231 (noting the use of the term ‘non-binding ADR’ to distinguish between adjudicative and non-adjudicative forms of ADR, arbitration belonging to the former category).

44  See Fuller, ‘The Forms and Limits of Adjudication’ 355 (noting that ‘certain problems by their intrinsic nature fall beyond the proper limits of adjudication’ though how these problems are to be defined remains even today a subject for debate).

45  cf. David Luban, ‘The Adversary System Excuse’, in David Luban (ed.), The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (Rowman and Littlefield, 1983) 90 (defining the ‘adversary system’ as ‘a method of adjudication characterized by three things: an impartial tribunal of defined jurisdiction, formal procedural rules, and … assignment to the parties of the responsibility to present their own cases and challenge their opponents’) (footnote omitted).

46  Adjudication necessarily operates within a larger system because the other units are necessary to ensure enforcement of adjudicatory decision-making, and to ensure that adjudicatory decision-making operates within its prescribed jurisdictional limitations. While a system is required, the system does not need to satisfy all the technical requirements of a legal system, even if nonlegal systems of adjudication almost inevitably rest on underlying legal systems for enforcement. See David Charny, ‘Illusions of a Spontaneous Order: “Norms” in Contractual Relationships’, 144 U. Pa. L. Rev. 1841, 1841 (1996).

47  See generally Lynn M. LoPucki, ‘The Systems Approach to Law’, 82 Cornell L. Rev. 479 (1997) (offering various definitions of systems). The notion that adjudication produces jurisdictionally bounded decisions within a system distinguishes it from, for example, a mother’s decision, upon hearing competing arguments from her two children about which one is entitled to possession of a favourite toy. In his essay, Fuller seeks to include even this mode of decision-making in his definition of adjudication. See Fuller, ‘The Forms and Limits of Adjudication’ 353.

48  The definition of an adjudicator that emerges from my definition of adjudication illustrates even more precisely why parental resolution of a sibling squabble is not adjudication. The parent is not required to consider arguments from both sides or to render a reason-based decision. Surely a good parent would listen to both children, and would decide based on reasons, but parental decision-making is not founded on or defined by these requirements, whereas an adjudicator’s decision-making is. See Catherine A Rogers, ‘Regulating International Arbitrators: A Functional Approach to Developing Standards of Conduct’, 41 Stan. J. Int’l L. 53, 82 n. 165 (2005) and accompanying text. Those people who serve as adjudicators may perform other functions corollary to their adjudicatory functions, and those functions may carry their own ethical obligations. See generally, Murray L. Schwartz, ‘The Other Things That Courts Do’, 28 UCLA L. Rev. 438 (1981) (examining the non-adjudicatory activities of courts, including promulgating rules, appointing officers, and administering probate estates).

49  John Leubsdorf argues that the aim of judicial disqualification standards should be to ensure that judges are able to put aside personal considerations, are willing to listen, and are able to act as a clean slate. See John Leubsdorf, ‘Theories of Judging and Judge Disqualification’, 62 N.Y.U. L. Rev. 237, 280–90 (1987).

50  In this context, ‘fairness’ is used in a procedural sense to refer to an affirmative obligation to treat the parties equally as well as a negative obligation to avoid bias that would interfere with an adjudicator’s equal consideration of both sides. ‘Procedural fairness’ has many different connotations. In this sense, ‘procedural equality’ and its relationship to fairness is perhaps the most fundamental, what Professor Bill Rubenstein refers to as ‘equipage equality’, or equal opportunities for litigants to produce evidence and arguments. See William B. Rubenstein, ‘The Concept of Equality in Civil Procedure’, 23 Cardozo L. Rev. 1865, 1874 (2002). As Jerry Mashaw observes, even in the narrower sense of equality of procedural opportunity, ‘equality is a notoriously slippery concept, and its procedural implications are puzzling’. Jerry L. Mashaw, ‘Administrative Due Process: The Quest for a Dignitary Theory’, 61 B.U. L. Rev. 885, 899 (1981).

51  In an extreme example, a traffic judge had a coffee vendor, who the judge had concluded was selling ‘putrid’ coffee, brought to his chambers in handcuffs. Zarcone v Perry, 572 F.2d 52, 53 (2d Cir. 1978). The judge was charged with ethical violations for abusing his office and exceeding his jurisdiction. In re Perry, 53 A.D.2d 882, 882, 385 N.Y.S.2d 589, 589 (2d Dept.), appeal dismissed, 40 N.Y.2d 1078, 392 N.Y.S.2d 1029, 360 N.E.2d 964 (1976). The judge was ultimately removed from office and held civilly liable for violating the vendor’s constitutional rights.

52  ‘Conduct in excess of clearly defined limits of a judge’s authority may amount to misconduct requiring the disciplinary action be taken[.]’ 48A C.J.S. Judges §109 (2004).

53  See Christopher J. Peters, ‘Participation, Representation, and Principled Adjudication’, 8 Legal Theory 185, 185 (2002). Christopher Peters’ work links participatory features of adjudication with its legitimacy. Although he seeks to defend the law-making function of US judges, his arguments also help explicate the link between adjudicatory functions and obligations to preserve the system in which those decisions are made.

54  See generally Schwartz, ‘The Other Things That Courts Do’ (examining the non-adjudicatory activities of courts, including promulgating rules, appointing officers, and administering probate estates).

55  See Michelle T. Friedland, ‘Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech’, 104 Colum. L. Rev. 563 (2004) (discussing constitutional limitations on legislative restrictions regarding judicial campaigning).

56  Under 28 U.S.C. § 455(a), recusal is mandatory ‘in any proceeding in which [the judge’s] impartiality might reasonably be questioned’. The ‘appearance of impropriety’ standard originated as a means of protecting the legitimacy or perceived legitimacy of judicial institutions. In an interesting article, Professor Peter Morgan traces the modern rise of the appearance-of-impropriety doctrine to the Black Sox scandal of 1919, the writings of lawyer/novelist Henry Fielding, and the turmoil following Watergate. See Peter W. Morgan, ‘The Appearance of Propriety: Ethics Reform and the Blifil Paradoxes’, 44 Stan. L. Rev. 593, 594–5 (1992). Although subject to some criticism, the standard has some objective benefits in encouraging voluntary compliance with judicial outcomes. See Janice Nadler, ‘Flouting the Law’, 83 Tex. L. Rev. 1399 (2005) (reporting on the results of an experiment that empirically tested the ‘Flouting Thesis’ in which participants who were exposed to laws and legal outcomes that they perceived as unjust were more willing, as a general matter, to flout unrelated laws).

57  Fuller engages in a similar reasoning of the relationship between judicial functions and the obligation of impartiality. Fuller reasoned that from the office of judge ‘certain requirements might be deduced, for example, that of impartiality, since a judge to be “truly” such must be impartial. Then, as the next step, if he is to be impartial he must be willing to hear both sides’. Fuller, ‘The Forms and Limits of Adjudication’ 365. While Fuller identifies the link, this analysis reverses the causal connection, namely that the obligation of impartiality results from the functional necessity that a judge be willing and able to hear both sides.

58  As noted earlier, Professor Leubsdorf has recognized the link between ethical standards and role, albeit in the judicial context. See Leubsdorf, ‘Theories of Judging and Judge Disqualification’ 239. cf. M.D.A. Freeman, ‘Standards of Adjudication, Judicial Law-Making and Prospective Overruling’, 26 Current Legal Probs. 166, 181 (1973) (‘Every institution embodies some degree of consensus about how it is to operate. To understand the judicial role and apprise the legitimacy of judicial creativity one must explore the shared expectations which define the role of judge.’).

59  J. Robert Brown, Jr and Allison Herren Lee, ‘Neutral Assignment of Judges at the Court of Appeals’, 78 Tex. L. Rev. 1037, 1044 (2000).

60  As Leubsdorf has noted, ‘[t]o define what a judge is is to decide what a system of adjudication is all about’. Leubsdorf, ‘Theories of Judging and Judge Disqualification’ 237.

61  As I have explained elsewhere, the role of parties and their counsel in proceedings is a complementary counterpart to the judicial role. If the judge is assigned the role of questioning witnesses, as in civil law systems, attorneys’ role with regard to witness testimony is circumscribed to suggesting questions or adding minor clarifications. See Rogers, ‘Fit and Function in Legal Ethics’, 413–4.

62  For example, most democratic systems depend on a judiciary that is independent of other branches of government. In the international and ADR contexts, the question is more how decisions relate to the public government or governments. The Uniform Domain Name Dispute Resolution Policy (UDRP), for example, was expressly designed as a soft-law system that supplements but does not supplant national court adjudication of domain name disputes. Laurence R. Helfer and Graeme B. Dinwoodie, ‘Designing Non-National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy’, 43 Wm. & Mary L. Rev. 141, 203 (2001).

63  This question inquires not only about the availability of appeal, but the standards under which review of an adjudicator’s decision will be evaluated.

64  For a discussion of the different normative goals of the US and civil law adjudicatory systems, and the link between those goals and countries’ cultural values, see Chase, ‘Legal Processes and National Character’, 17–18 (citing Geert Hofstede, Culture’s Consequences (Sage Pub. 1980) 25).

65  This insight is given its most potent expression by Professor Post, who postulates that lawyers are despised because they are our own ‘dark reflection’. Robert C. Post, ‘On the Popular Image of the Lawyer: Reflections in a Dark Glass’, 75 Cal. L. Rev. 379, 386 (1987). ‘We use lawyers both to express our longing for a common good, and to express our distaste for collective discipline. When we recognize that the ambivalence is our own, and that the lawyer is merely our agent, we use the insight as yet another club with which to beat the profession.’; see also Eugene R. Gaetke, ‘Lawyers as Officers of the Court’, 42 Vand. L. Rev. 39, 40–41 (1989) (acknowledging the conflicting duality of an attorney’s role); L. Ray Patterson, ‘Legal Ethics and the Lawyer’s Duty of Loyalty’, 29 Emory L.J. 909, 969 (1980) (noting that attorneys have primary obligations to clients, but also obligations as officers of the court).

66  See David B. Wilkins, ‘Who Should Regulate Lawyers’, 105 Harv. L. Rev. 799, 815–8 (1992).

67  The contradictory role of the lawyer advocate is arguably responsible for much of the public anti-attorney animus that has accompanied the profession in its march through the ages. For example, in a poll conducted by the National Law Journal, 42% of those surveyed disapproved of lawyers because either they ‘manipulate the legal system without any concern for right or wrong’ or they ‘file too many unnecessary lawsuits’. ‘What America Really Thinks About Lawyers’, Nat’l L.J., 18 Aug. 1986, S-3. Meanwhile, a combined total of 69% of those surveyed identified as the most positive aspects of lawyers either their ability to elevate their clients as their ‘first priority’ or their ability to ‘cut through red tape’. As Post observes, these statistics demonstrate that ‘lawyers are applauded for following their clients’ wishes and bending the rules to satisfy those wishes … [and] at the very same time condemned for using the legal system to get what their clients want, rather than to uphold the right and denounce the wrong’. See also Marvin Mindes, ‘The Lawyer as Trickster or Hero’, 1982 Am. B. Found. Res. J. 177.

68  See Catherine A. Rogers, ‘Fit and Function in Legal Ethics: Developing A Code of Conduct for International Arbitration’, 23 Mich. J. Int’l L. 341, 348–54 (2002).

69  For a discussion of universal prohibitions against bribing judges, see Rogers, ‘Fit and Function in Legal Ethics’, 361–62.

70  For a discussion of the universal understanding that attorneys cannot represent opposing sides in a single case, see Rogers, ‘Fit and Function in Legal Ethics’ 368 nn. 129–30.

71  Notwithstanding the supposed universality, and the linguistic similarities among translations of the term ‘advocate’, ‘[t]he question “who is a lawyer?” is posed by efforts to make comparisons across categories not corresponding to formal divisions on the national level’. Philip S.C. Lewis, ‘Comparison and Change in the Study of Legal Professions’, in Lawyers in Society, Volume Three: Comparative Theories 27, 32; see also Kelly Crabb, ‘Providing Legal Services in Foreign Countries: Making Room for the American Attorney’, 83 Colum. L. Rev. 1767, 1770 and n. 13, 1779–82 and nn. 62–82 (1983) (describing the various national designations for persons who perform legal functions).

72  Highly authoritarian and socialist regimes envision that lawyers, like all workers, are devoted primarily to the good of society and only minimally to clients, since more vigorous advocacy on behalf of a client might conflict with the collective good. Ethan Michelson, ‘The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work’, 40 Law & Soc’y Rev. 1, 30 (2006) (‘China’s socialist legality, by demanding that the law serve the interests of the state above all else … produces a fundamental conflict of interest between lawyers’ loyalty to the state and their loyalty to their clients.’). Charles F. Wolfram, Modern Legal Ethics (West Pub., 1986) § 1.2, 5 (describing the diminished obligations lawyers in Soviet countries owed to their clients).

73  As will be explained in the following section, this layout might describe the role assigned to lawyers in civil law systems.

74  At this level of generality, the term ‘civil law system’ does not represent any particular system, but instead a prototype or ‘ideal type’, to use Max Weber and Mirjan Damaška’s terminology. See Damaška, The Faces of Justice and State Authority 9. Despite its imprecision, the term is useful as a point of contrast with the US system, and a useful approximation of some of the key differences.

75  When comparing adjudicatory regimes, even the term ‘judge’ can be misleading since it is not a term that is universally assigned to the decision-maker. The most obvious exception is the jury. See Damaška, The Faces of Justice and State Authority 54.

76  The contrasting role of the judge in civil and common law systems has been called the ‘grand discriminant’ between the two systems. See John H. Langbein, ‘The German Advantage in Civil Procedure’, 52 U. Chi. L. Rev. 823, 830 (1985).

77  Mitchel de S.-O.-I’E. Lasser, ‘Judicial (Self-) Portraits: Judicial Discourse in the French Legal System’, 104 Yale L.J. 1325, 1334 (1995).

78  See Jonathan E. Levitsky, ‘The Europeanization of the British Legal Style’, 42 Am. J. Comp.L. 347, 379–80 (1994); see also John Henry Merryman, The Loneliness of the Comparative Lawyer—And Other Essays in Foreign and Comparative Law (1999) 187 (‘The work of the judge is … simple: he is presented with a body of principles built into a carefully elaborated systematic structure, which he applies to a body of specific norms whose meaning is readily understood and whose application is comparatively easy. The applicable norms need only to be identified and applied[.]’).

79  See Rene David and John E.C. Rierly, Major Legal Systems in the World Today (3rd edn. 1985) 142.

80  Lasser, ‘Judicial (Self-) Portraits’ 1334.

81  Katalin Kelemen, ‘Dissenting Opinions in Constitutional Courts’, 14 German L.J. 1345, 1371 (2013) (‘In continental Europe, ordinary judges, with a few exceptions, are still not permitted to state their dissent publicly, and constitutional judges, who attach a higher value to institutional loyalty than common law judges, are still quite reluctant to dissent.’).

82  See Mitchel de S.-O.-I’E. Lasser, ‘“Lit. Theory” Put to the Test: A Comparative Literary Analysis of American Judicial Tests and French Judicial Discourse’, 111 Harv. L. Rev. 689, 695–99 (1998); see also Carl Baudenbacher, ‘Some Remarks on the Method of Civil Law’, 34 Tex. Int’l L.J. 333 (1999) (arguing that American scholars of civilian systems often confuse the ‘folklore’ of those systems with ‘reality’); Claire M. Germain, ‘Approaches to Statutory Interpretation and Legislative History in France’, 13 Duke J. Comp. & Int’l L. 195 (2003) (describing the range of interpretive methods used today by French judges).

83  Lasser affirms the vitality of the official portrait of the civil law judge by pointing to explicit provisions of the French Civil Code that prohibit judges from ‘making’ law, see Lasser, ‘Judicial (Self-) Portraits’ 1335. Lasser just denies that it is the only vision of the judicial function that operates in the French system.

84  See generally John Bell, ‘Principles and Methods of Judicial Selection in France’, 61 S. Cal. L. Rev. 1757, 1757 (1998) (using the French system to examine ‘different types of problems encountered during judicial selection in which the political or policy orientation of the individual judge may not always be a dominant feature’); David S. Clark, ‘The Selection and Accountability of Judges in West Germany: Implementation of a Rechtsstaat’, 61 S. Cal. L. Rev. 1795, 1818 (1998) (noting that France’s selection of judges is based upon ‘the needs of a particular type of judicial function’ and that Germany’s law schools focus on preparing students to become judges and that selection ‘contemplates … emphasizing democratic legitimation and neutral administration of justice’).

85  Charles H. Koch, Jr., ‘Envisioning a Global Legal Culture’, 25 Mich. J. Int’l L. 1, 37 (2003). For a classical articulation of judicial selection in civil law countries, see Arthur Taylor Von Mehren and James Russell Gordley, The Civil Law System: An Introduction to the Comparative Study of the Law, 2nd edn. (Little Brown & Co., 1977) 1148.

86  As one scholar explains, civil law judges advance in their careers from an apprenticeship supervised by senior judges, up through increasingly important courts based on their performance, which is evaluated and controlled by other judges in the form of a council. See Charles H. Koch, Jr., ‘The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems’, 11 Ind. J. Global Legal Stud. 139, 143 (2004).

87  Vivian Grosswald Curran, ‘Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union’, 7 Colum. J. Eur. L. 63, 100 (2001).

88  See Lasser, ‘Judicial (Self-) Portraits’ 1351.

89  Curran, ‘ Romantic Common Law, Enlightened Civil Law’, 76–77.

90  In what has been aptly heralded as a ‘unique collection of outstanding insights into judicial structures and legitimacy, legal theory and reasoning, and comparative law’, editors Neil MacCormick and Robert Summers have brought together a series of commentators who describe the reliance on precedent in European judicial decision-making notwithstanding the absence of formal obligation or authorization to do so. See also Thomas Lundmark, ‘Interpreting Precedents: A Comparative Study’, 46 Am J. Comp. L. 211, 224 (1998) (book review); see generally Neil MacCormick and Robert S. Summers (eds.), Interpreting Precedents: A Comparative Study (Dartmouth Pub. Co., 1997).

91  See Judith Resnik, ‘Managerial Judges’, 96 Harv. L. Rev. 374, 390, 425–427 (1982).

92  Any one of these hearings may dispose of the entire case. See Langbein, ‘The German Advantage in Civil Procedure’ 831. One demonstration of the extent of judicial power is that in France, it is often said there are no formal evidentiary rules. See Gerald Kock and Richard Frase (trans.), The French Code of Criminal Procedure (Fred B. Rothman & Co., 1988) 199 (describing and translating provisions regarding the introduction of evidence from the French Code of Criminal Procedure). While the absence of evidentiary rules may initially seem strange to an American lawyer, it is only because they are accustomed to the presentation of information to a lay jury. Even in the US, when parties agree to a bench trial, often the formal rules of evidence are relaxed. See Damaška, The Faces of Justice and State Authority 130 and n. 60.

93  As John Langbein describes, in the German system: The very concepts of ‘plaintiff’s case’ and ‘defendant’s case’ are unknown. In our system those concepts function as traffic rules for the partisan presentation of evidence to a passive and ignorant trier. By contrast, in German procedure the court ranges over the entire case, constantly looking for the jugular—for the issue of law or fact that might dispose of the case.

Langbein, ‘The German Advantage in Civil Procedure’ 830. Although the German judge is obviously much more active than the US version, the ‘inquisitorial’ role of the German judge in civil proceedings can be, and has been, dramatically overstated. See generally Ronald J. Allen, ‘Idealization and Caricature in Comparative Legal Scholarship’, 82 Nw. U. L. Rev. 785 (1988) (criticizing Langbein for overstating the role of the judge in German civil proceedings).

94  Conventional wisdom among German advocates is that a lawyer should be wary of putting more than three questions to a witness because to put more risks implying that the judge did not do a satisfactory job in initial questioning. See Chase, ‘Legal Processes and National Character’, 4–5. While the conventional wisdom is not always followed, it demonstrates the gravitational force of the judge’s power over fact gathering.

95  See Damaška, The Faces of Justice and State Authority 138 (noting that continental decision-makers are expected to conduct pre-hearing review of the files and are not presumed to come to the case with a ‘virgin mind’).

96  Langbein, ‘The German Advantage in Civil Procedure’ 832. To the extent that US judges engage in some of these tasks, they do so informally, and partially. See Resnik, ‘Managerial Judges’ 377. The divide between civil and common law systems is not always so stark. In Canada, judges have an obligation to assist the jury in summarizing and characterizing the evidence for them, as well as suggesting conclusions that might be drawn from certain evidence and warning the jury of the inherent unreliability of certain types of evidence. Judges may also express an opinion about what would be a reasonable range of damages. John P. Wright, ‘An American Visitor to a Canadian Court’, 4 Green Bag 2d 281, 285 (2001).

97  See also Damaška, The Faces of Justice and State Authority 120 (noting that when a judge ‘grills a witness testifying in favor of one disputant, the other may think that the official is assisting his adversary’).

98  In the United States there are strict prohibitions against ex parte communications, except in the most narrow, and extreme exceptions, such as special proceedings for extraordinary relief through temporary restraining orders, in camera inspections, and similar unusual procedural settings. Wolfram, Modern Legal Ethics 605–6.

99  See Terry, ‘Creating an International Network of Lawyer Regulators’ n. 159 (noting that ‘in many European countries ex parte contact with the court on “non-fundamental” issues is not prohibited’). For similar reasons, as argued elsewhere, European regulation of attorney conflicts of interest may be much less rigorous than regulation in the United States because of expectations that civilian attorneys, in performing their quasi-official role, would maintain professional independence from their own clients, thus reducing the threat of cross-client conflicts. See Rogers, ‘Fit and Function in Legal Ethics’ 390–1.

100  See Rene David and John E.C. Rierly, Major Legal Systems in the World Today, 3rd edn. (Stevens & Sons Ltd., 1985).

101  See David and Rierly, Major Legal Systems in the World Today 142.

102  See Rudolf du Mesnil de Rochemont, ‘Federal Republic of Germany’, in Dennis Campbell (ed.), Transnational Legal Practice (1982) 127.

103  See Costas K. Kyriakides and Anthony B. Hadjioannou, ‘Greece’, in Transnational Legal Practice 155.

104  See Kyriakides and Hadjioannou, ‘Greece’, in Transnational Legal Practice 155.

105  See Kyriakides and Hadjioannou, ‘Greece’, in Transnational Legal Practice 155.

106  Mary C. Daly, ‘The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by U.S. and Foreign Lawyers’, 32 Vand. J. Transnat’l L. 1117, 1150–1 (1999). These geographic restrictions have recently been lifted under compulsion from the European Union.

107  See Olga Pina, Note, ‘Systems of Ethical Regulation: An International Comparison’, 1 Geo. J. Legal Ethics 797, 809 (1988).

108  The texts of both the US and European code of professional responsibility (the Council of Bars and Law Societies of Europe (CCBE) Code) appear to be similarly committed to the principle of attorney ‘independence’, but the linguistic similarity masks deeply divergent views about what this duty requires. American attorneys also have an obligation of ‘independence’, but the term denotes independence from the state, whereas on the continent ‘independence’ refers primarily to attorneys’ relationships with their clients and other attorneys. Laurel S. Terry, ‘An Introduction to the European Community’s Legal Ethics Part I: An Analysis of the CCBE Code of Conduct’, 7 Geo. J. Legal Ethics 1, 46–8 (1993).

109  See Rogers, ‘Fit and Function in Legal Ethics’ 361–2 (explaining that creativity in legal argument is less tolerated in civil law systems and can be regarded as professionally irresponsible).

110  See David Luban, ‘Rediscovering Fuller’s Legal Ethics’, 11 Geo. J. Legal Ethics 801, 822 (1998) (citing Lon L. Fuller, ‘The Adversary System’, in Harold J. Berman (ed.), Talks on American Law (Random House, 1961) 30).

111  Exercise of professional judgment to temper client positions does not mean civil law laywers are less effective or less committed to clients. An exercise of adversarial restraint can be an effective tool in building credibility and attaining the high ground in an adversarial setting. In addition, it has been argued that ‘an adversarial lawyer transmits more facts that are unfavorable to her own client … [a]pparently [induced] to candor by the presence of an adversary’. Monroe H. Freedman, ‘Our Constitutionalized Adversary System’, 1 Chap. L. Rev. 57, 79 (1998) (citing E. Allan Lind et al., ‘Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings’, 71 Mich. L. Rev. 1129 (1973).

112  See Damaška, The Faces of Justice and State Authority 138.

113  Professor Reitz characterizes the difference as that US judges ‘view themselves as umpires between the contending parties, rather than [as German judges] government officials responsible for determining the truth of the allegations’. John C. Reitz, ‘Why We Probably Cannot Adopt the German Advantage in Civil Procedure’, 75 Iowa L. Rev. 987, 992 (1990).

114  Reitz, ‘Why We Probably Cannot Adopt the German Advantage in Civil Procedure’ 992.

115  Reitz, ‘Why We Probably Cannot Adopt the German Advantage in Civil Procedure’ 992 (footnotes omitted).

116  There are many cases in the United States in which arbitrators have been challenged on the grounds of bias or misconduct based on aggressive questioning of witnesses. Compare In Matter of Arbitration between Cole Publ’g Co., Inc. v John Wiley & Sons, Inc., 1994 WL 532898, *2 (S.D.N.Y. 29 Sept. 1994) (rejecting challenge to arbitral award that alleged arbitrator bias was evidenced by aggressive questioning of some witnesses and attempts to rehabilitate others, and that arbitrator acted more as an advocate than an impartial moderator), with Holodnak v Avco Corp., 381 F. Supp. 191 (D. Conn. 1974), aff’d in part, rev’d in part on other grounds, 514 F.2d 285 (2d Cir. 1975) (finding bias and vacating arbitral award based on arbitrator’s ‘badgering’ the complaining party at the time of the proceedings).

117  Rogers, ‘Fit and Function in Legal Ethics’ 392.

118  ‘[T]he Senate can serve as an important political check on the President’s power to appoint. Moreover, the political nature of the Senate’s role, like that of the President, helps ameliorate the “countermajoritarian difficulty.”’ Henry Paul Monaghan, ‘The Confirmation Process: Law or Politics?’ 101 Harv. L. Rev. 1202, 1203 (1988); see also Richard D. Manoloff, ‘The Advice and Consent of the Congress: Toward a Supreme Court Appointment Process for Our Time’, 54 Ohio St. L.J. 1087, 1102 (1993) (arguing that aggressive Senate review of presidential nominees may provide a valuable political check on judicial appointments).

119  This preference is most clearly expressed in the Public Litigation Model. While Fiss argues that judicial independence is necessary to protect fundamental rights, he simultaneously demands certain political inclinations of judicial decision-makers. See Owen Fiss, ‘The Supreme Court, 1978 Term-Foreword: The Forms of Justice’, 93 Harv. L. Rev. 1, 43–4 (1979).

120  Professor Koch reasons that the structure of the civil law judiciary, and particularly the vesting of both promotion and disciplinary decision-making in the hands of senior judges, may encourage junior judges to conform or ‘bias’ their decision-making to conform to the perceived preferences of senior judges. See Charles H. Koch, Jr., ‘The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems’, 11 Ind. J. Global Legal Stud. 139, 143–4, 147 and nn. 16 and 28 (2004).

121  As dissenting Justices Ginsburg, Breyer, and Stevens commented in their dissent to the majority opinion in Bush v Gore, ‘[a]lthough we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law’. Bush v Gore, 531 U.S. 98, 128–9 (2000) (Stevens, J., dissenting).

122  Notably, concern over political accountability does affect judicial selection in civil law countries for those judges whose functional role includes invalidating unconstitutional legislative decision-making. For example, Article 94(1) of the German Basic Law requires that half of the judges of the Federal Constitutional Court are elected by the Bundestag and half by the Bundesrat, and pursuant to Article 56 of the French Constitution, one-third of the French Cour di Cassassion are appointed by the President of the Republic, one-third by the President of the National Assembly, and one-third by the President of the Senate. These and other judicial selection processes are described in Gustavo Fernandes de Andrade, ‘Comparative Constitutional Law: Judicial Review’, 3 U. Pa. J. Const. L. 977, 986–7 (2001).

123  Curran, ‘Romantic Common Law, Enlightened Civil Law’ 100.

124  As one comparative law scholar explains:Common-law lawyers … fashion their arguments from a close study of prior cases. Their success as lawyers depends on persuading the judge in each case of the accuracy of the analogies they suggest between their client’s situation and that of the precedents they cite … and the [distinctions] from situations that arose in the precedents they hope to distinguish. The common-law lawyer’s task also is to persuade the judge that the lawyer’s interpretation of existing case law accurately reflects prevailing contemporaneous legal standards, and that the accumulated body of relevant precedents obliges the judge to rule in favor of the lawyer’s client… . Thus, common-law lawyers engage in complex factual triages, distinguishing as factually different and distant those cases whose outcomes would militate against their client’s interests…Curran, ‘Romantic Common Law, Enlightened Civil Law’, 76–77.

125  Historically, modern concerns about impartiality can be traced to the emergence in the seventeenth century of doubt about the ability or at least difficulty to reach ‘an objectively correct legal decision’, which caused people to go ‘to greater lengths to prevent extraneous motives from inhibiting the delicate feat’. Leubsdorf, ‘Theories of Judging and Judge Disqualification’ 249 (citing Barbara Shapiro, Probability and Certainty in Seventeenth Century England (Princeton, 1983) 190–1).

126  See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale, 1962) 16–23 (arguing that judges make law even though they are not elected or constrained in the same way legislatures are).

127  See generally Guido Calabresi, A Common Law for the Age of Statutes (Harvard, 1982) (arguing that the structure of the courts and the nature of the common law makes them better suited to resolve some policy issues than the legislature); Thomas W. Merrill, ‘Does Public Choice Theory Justify Judicial Activism After All?’ 21 Harv. J.L. & Pub. Pol’y 219 (1997) (suggesting that courts provide less expensive access to government than direct lobbying of the legislature).

128  Lon L. Fuller and John D. Randall, ‘Professional Responsibility: Report of the Joint Conference’, 44 A.B.A. J. 1159, 1160 (1958), quoted in Luban, ‘Rediscovering Fuller’s Legal Ethics’ 821.

129  See Luban, ‘Rediscovering Fuller’s Legal Ethics’ 821 (‘What Fuller claims is psychologically impossible turns out to be daily practice in civil law systems.’).

130  See Luban, ‘Rediscovering Fuller’s Legal Ethics’ 822.

131  See Catherine A. Rogers, ‘Gulliver’s Troubled Travels, or The Conundrum of Comparative Law’, 67 Geo. Wash. L. Rev. 149, 182–3 (1998).

132  As David Luban has explained in his more elaborated exposition on Fuller’s theories, ‘we can agree with [Fuller] that an adjudication should include all points of view without conceding that each point of view should be spin-doctored by an advocate to advance a party’s interest’. See Luban, ‘Rediscovering Fuller’s Legal Ethics’ 826 see also Bone, ‘Lon Fuller’s Theory of Adjudication’ 1307, n. 126 (describing Fuller’s conception of how the ‘process of partisan advocacy is likely to push lawyers in the direction of viewing their role, not in terms of persuasion or manipulation of doctrine, but instead in terms of “conveying to the court that full understanding of the case which will enable it to reach a wise and informed decision”’) (citing Lon L. Fuller, ‘Philosophy for the Practicing Lawyer’, in Kenneth I. Winston (ed.), Introduction to the Principles of Social Order (Duke, 1981) 282, 289–90). There are those who might contend, on the other hand, that Fuller’s hypothesis is supported in social scientific research that indicates that an ‘opponent of an adversarial lawyer transmits more facts that are unfavorable to her own client’, apparently induced to candour by the presence of an adversary. See Monroe H. Freedman, ‘Our Constitutionalized Adversary System’, 1 Chap. L. Rev. 57, 79 (1998) (citing E. Allan Lind et al., ‘Discovery and Presentation of Evidence in Adversary and Nonadversary Proceedings’, 71 Mich. L. Rev. 1129, 1136 (1973)).

133  For an extended discussion of the methodological problems raised in comparative law, see Rogers, ‘Gulliver’s Troubled Travels’ 162.

134  Andrew Huxley, ‘Golden Yoke, Silken Text’, 106 Yale L.J. 1885, 1924–5 (1997). The problems illustrated by Huxley’s example are exacerbated in comparing principles, rules, procedures, and doctrines instead of tangible and relatively simple objects, such as chalk and cheese. Legal rules, principles, and procedures exist in the larger context of a legal system’s framework. See Rogers, ‘Gulliver’s Troubled Travels’ 161–2 and n. 62.

135  See David Luban, ‘Rediscovering Fuller’s Legal Ethics’, 11 Geo. J. Legal Ethics 801, 807 (1998); Lon L. Fuller, ‘The Philosophy of Codes of Ethics’, 1995 Elec. Eng. 916, 917 (1955).

136  Daly, ‘The Dichotomy Between Standards and Rules’, 1262–63 (noting that ‘the Preamble to the [US] Model Rules emphasizes a lawyer’s obligation to the client’ in contrast to ‘the Preamble to the CCBE Code … [which] emphasizes a lawyer’s obligation to society’).

137  The US system stops short of treating witnesses as classical Rome did, expecting them not only to describe facts of the case, but also to express solidarity with, and advocate on behalf of, one party. See Damaška, The Faces of Justice and State Authority 28. While US witnesses do not technically ‘belong’ to one party, US attorneys approach litigation with a ‘proprietary concept of evidence’. See Mirjan Damaška, ‘The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments’, 45 Am. J. Comp. L. 839, 845 (1997). The formal status of witnesses as ‘neutral’ has little practical effect, except that it is used as a basis for opposing efforts by parties to prevent their opposition from speaking to non-party witnesses. See Wolfram, Modern Legal Ethics, § 12.4.3, 647.

138  Langbein, ‘The German Advantage in Civil Procedure’ 864; see also Reitz, ‘Why We Probably Cannot Adopt the German Advantage in Civil Procedure’ 994 (‘American courts could only adopt the German rule discouraging pretrial contact with witnesses by changing our cultural definition of the lawyer’s role.’).

139  The reason why there is no apparent obligation for an attorney to report client perjury or intent to commit perjury is that Continental systems distinguish sharply between the role of a party and that of a witness. Parties to an action are rarely permitted to testify because that would force the dubious choice between testifying against their own interest and perjuring themselves. See Damaška, ‘The Uncertain Fate of Evidentiary Transplants’ 842. The rarity of party testimony is probably responsible for the lack of attention to attorney obligations regarding client perjury.

140  Nicolò Trocker, ‘Transnational Litigation, Access to Evidence, and U.S. Discovery’, in R. Stürner and M. Kawano (eds.), Current Topics of International Litigation (Mohr Siebeck, 2009) 146, 156 (‘[European] codes of civil procedure of the 19th century strictly adhered to the principle nemo tenetur edere contra se, i.e. the principle that no party has to help her opponent in her/his enquiry into the facts.’).

142  See ‘International Law Practice in the 1990s: Issues of Law, Policy, and Professional Ethics’, 86 Am. Soc’y Int’l L. Proc. 272, 283 (1992). European lawyers may have added incentives to interpret these restrictions narrowly because they do not have the opportunity to seek client waiver and their decision cannot be challenged by a motion for disqualification, as is the American practice.

143  Compare Wolfram, Modern Legal Ethics, § 11.3.3, 604–06 (purpose of prohibition against ex parte communications with judge is to prevent communicating party from gaining unfair advantage), with Langbein, ‘The German Advantage in Civil Procedure’ 830 (describing how under German procedure the judge is not expected to be simply an impartial adjudicator, so there is little concern that improper influence will be exerted on or by the parties or that information communicated ex parte will endanger the validity of the result).

144  For a discussion of contrasting approaches to conflicts of interest in civil and common law systems, see paras 3.55–3.68.

145  Under this doctrine, an attorney who received a communication from opposing counsel with this designation must maintain the communication as confidential and is even prohibited from sending copies to his or her own client. See para. 7.60.

146  Damaška, The Faces of Justice and State Authority 143.

147  Damaška, The Faces of Justice and State Authority 143–4.

148  According to commentators, lawyer ethics in China are evolving from being ‘a state legal worker affiliated with the state-owned Office of Legal Advisor to being a legal practitioner authorized by clients or assigned by institutes to represent them; and reporting an increase in loyalty to the client in the Chinese legal profession’. Jack P. Sahl, ‘Forward: The New Era—Quo Vadis?’ 43 Akron L. Rev. 641 (2010).

149  See Chase, ‘Legal Processes and National Culture’ 19.

150  By maximizing the role of partisans who have obvious incentives to distort the truth in favour of their personal interests and by permitting parties to be witnesses on their own behalf, the US litigation model arguably prioritizes litigants’ right to a ‘day in court’ over the accuracy of the ultimate result. See Damaška, The Faces of Justice and State Authority 11; Chase, ‘Legal Processes and National Culture’ 19 (arguing that legal culture in Germany is more comfortable with authority, while in the American system the legal culture emphasizes party autonomy over the process as an expression of individualism and a commitment to due process); Jerold S. Auerbach, Justice Without Law? (Oxford University Press, 1983) 10 (arguing that ‘the dominant ethic [of American Society] is competitive individualism’ and linking that ethic to US legal institutions and processes).

151  For a summary of sources in this debate, see Chase, ‘Legal Processes and National Culture’ nn. 41–42.

152  See Geoffrey C. Hazard and Angelo Dondi, ‘Responsibilities Of Judges And Advocates In Civil And Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, 39 Cornell Int’l L.J. 59 (2006) (‘[I]n commercial litigation, this traditional contrast seems at least misleading, especially considering that the parties are generally sophisticated in business affairs, have real disputes about substantial and material matters, and tend to employ experienced advocates to represent them.’).

153  See, e.g., Linda S. Mullenix, ‘Lessons from Abroad: Complexity and Convergence’, 46 Vill. L. Rev. 1, 5 (2001) (‘[P]articularly in the realm of complex litigation, the American managerial judge has undertaken roles that are indeed converging with the civil law inquisitorial judge.’); Richard L. Marcus, ‘Reining in the American Litigator: The New Role of American Judges’, 27 Hastings Int’l & Comp. L. Rev. 3, 29–30 (2003) (noting that some countries ‘may be gravitating toward developments in litigation that make it more like America’s … [including] Japan [where] there is now some opportunity to do discovery; [meanwhile,] American procedure’s movement toward “greater judicial control over proceedings” makes it appear that “America is falling in line with the rest of the world”, though “there is likely still to be a gulf between the reality of the American lawyer and the experiences of lawyers elsewhere”’).

154  Even in moral philosophy, ethics cannot be analysed independently of social context. ‘[E]very moral philosophy offers explicitly or implicitly at least a partial conceptual analysis of the relationship of an agent to his or her reasons, motives, intentions, and actions, and in so doing generally presupposes some claim that these concepts are embodied or at least can be in the real social world.’ Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2d edn. (Notre Dame, 1984) 23.

156  See John M. Townsend, Overview and Comparison of International Arbitration Rules (Litigation and Administrative Practice Course Handbook Series, Practicing Law Institute, 2000) 817.

157  See, e.g., United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, art. 15(2) (1977) (permitting arbitrators to determine whether to hold hearings in the absence of party request).

158  Karton, The Culture of International Arbitration 19–24.

159  Karton, The Culture of International Arbitration 23–24.

160  See Tom R. Tyler et al., ‘Cultural Values and Authority Relations: The Psychology of Conflict Resolution Across Cultures’, 6 Psychol. Pub. Pol’y & L. 1138 (2000) (describing the effect of values of a population on their relation to authority, particularly individual reactions to conflict resolution either based on its substantive outcomes or on its treatment of them in the process); Resnik, ‘Tiers’ 839 (elaborating the normative content of procedural rules in relation to the ‘valued features’ of US culture).

161  See, e.g., Gerald Aksen, ‘Arbitration and Other Means of Dispute Settlement’, in David N. Goldsweig and Roger H. Cummings (eds.), International Joint Ventures: A Practical Approach to Working with Foreign Investors in the U.S. and Abroad, 2nd edn. (1990) 287 (citing distrust of opponent’s national courts as primary motivation for resorting to arbitration). A recent survey of participants in international arbitration bears this hypothesis out. Of those surveyed, 72% identified ‘neutrality’ and 64% identified enforceability as ‘highly relevant to their decision to arbitrate’. See Christian Bühring-Uhle, Arbitration and Mediation in International Business (Kluwer Law International, 1996) 45, cited in Christopher R. Drahozal, ‘Commercial Norms, Commercial Codes, and International Commercial Arbitration’, 33 Vand. J. Transnat’l L. 79, 95 n. 83 (2000). Other popular reasons were expertise available through arbitration (37%) and the unavailability of appeal (37%).

162  Until recently, the standard conception was that arbitration clauses ‘divested’ courts of jurisdiction. See, e.g., Philip J. McConnaughay, ‘The Risks and Virtues of Lawlessness: A “Second Look” at International Commercial Arbitration’, 93 Nw. U. L. Rev. 453, 473 (1999). More recently, this view has been called into question, particularly by the First Circuit: ‘The … modern view [is] that arbitration agreements do not divest courts of jurisdiction, though they prevent courts from resolving the merits of arbitrable disputes.’ DiMercurio v Sphere Drake Ins., PLC, 202 F.3d 71, 77 (1st Cir. 2000); see also Vimar Seguros y Reaseguros, S.A. v M/V Sky Reefer, 29 F.3d 727, 733 (lst Cir. 1994) (‘[A]n agreement to arbitrate does not deprive a federal court of its jurisdiction over the underlying dispute.’), aff’d, 515 U.S. 528 (1995); Morales Rivera v Sea Land of Puerto Rico, Inc., 418 F.2d 725, 726 (lst Cir. 1969) (holding that arbitration clauses are ‘not destructive of jurisdiction’).

163  See William W. Park, ‘Control Mechanisms in the Development of a Modern Lex Mercatoria’, in Thomas E. Carbonneau (ed.), Lex Mercatoria and Arbitration (1998) 143.

164  In the words of Alexander Hamilton, ‘An unjust sentence against a foreigner … would … be an aggression upon his sovereign as well as one which violated stipulations in a treaty or the general laws of nations.’ Clinton Rossiter (ed.), The Federalist No. 80 (1961), 476–7.

165  See Joseph F. Weis, Jr, ‘The Federal Rules and The Hague Conventions: Concerns of Conformity and Comity’, 50 U. Pitt. L. Rev. 903, 903 (1989) (analysing the sovereignty issues that are implicated and ‘pos[e] substantial problems in transnational litigation’).

166  See Gary Born, International Commercial Arbitration (Kluwer, 2014) 66.

167  See W. Michael Reisman et al., International Commercial Arbitration: Cases, Materials and Notes on the Resolution of International Business Disputes (1997) 1215 (‘[A]rbitral awards as a whole enjoy a higher degree of transnational certainty than judgments of national courts.’); see also Saul Perloff, ‘The Ties that Bind: The Limits of Autonomy and Uniformity in International Commercial Arbitration’, 13 U. Pa. Int’l Bus. J. 323, 325 n. 11 (1992).

168  W. Michael Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (1992) 11–13. This balance is established by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 [hereinafter the ‘New York Convention’ or the ‘Convention’].

169  Toby Landau, Composition and Establishment of the Tribunal, 9 Am. Rev. Int’l Arb. 45, 45 (1998) (‘It is often said that one of the central advantages of arbitration over litigation is the ability to choose one’s judge.’)

170  See Robert B. von Mehren, ‘Enforcement of Foreign Arbitral Awards in the United States’, (Litigation and Administrative Practice Course Series Handbook No. 579, Practicing Law Institute, 1998), 147, 152.

171  Most arbitral rules permit each party to select a ‘party arbitrator’, subject to objections by the opposing party about conflicts of interest. Once selected, the two party arbitrators then select a third arbitrator who will act as the ‘chairperson’ of the tribunal. The power to select the arbiter of the dispute is one of the most distinguishing features of arbitration and arguably the one that provides comfort enough for parties to relinquish their right to bring claims in their own courts. See Reisman et al., International Commercial Arbitration: Cases, Materials and Notes 541–72; see also V.S. Mani, International Adjudication: Procedural Aspects (Martinus Nijhoff Publishers, 1980) 16–17 (describing control over the composition of the tribunal as the ‘royal road’ that has lured sovereign nations into international adjudication).

172  Because the power of arbitrators derives from the arbitration agreement, arbitrators can only perform those powers delegated to them in the arbitration agreement. See Reisman et al., International Commercial Arbitration: Cases, Materials and Notes 1174–54.

174  Kristen Weisenberger, ‘Peace is Not the Absence of Conflict: A Response to Professor Rogers’ Article “Fit and Function in Legal Ethics”’, 25 Wis. Int’l L. J. 89, 90, 123 (2007) (arguing that international arbitration ‘has effectively harmonized the ethical rules regarding pre-testimonial communication with witnesses’). Damaška, ‘The Uncertain Fate of Evidentiary Transplants’ 847 (arguing that if civilian systems introduced cross-examination, fairness would require at least some ‘minimal degree’ of witness preparation). Pre-testimonial communication is also necessary in international arbitration because witnesses are often physically located far from theplace of arbitration. Bringing them to arbitration, if they could indeed be compelled, would be uneconomical and unrealistic unless there is some knowledge beforehand about what they might be able to contribute to an understanding of the issues in dispute. See Nicolas C. Ulmer, ‘Ethics and Effectiveness: Doing Well by Doing Good’, in Geoffrey M. Beresford Hartwell (ed.), The Commercial Way to Justice: Institute of Arbitrators (1997) 179.

175  See Berthold Goldman, ‘The Application of Law: General Principles of Law—The Lex Mercatoria’ in Julian D.M. Lew (ed.), Contemporary Problems in International Arbitration (1986) 124. See also Alan Scott Rau and Edward F. Sherman, ‘Tradition and Innovation in International Arbitration Procedure’, 30 Tex. Int’l L.J. 89, 92 (1995) (‘[I]nternational arbitration hearings are often something of an amalgam of the two traditions, with witness testimony frequently presented in affidavit or summary-statement form, and, when live testimony is presented, with limited cross-examination.’); Christian Borris, ‘The Reconciliation of Conflicts Between Common Law and Civil Law Principles in the Arbitration Process’ in Stefan N. Frommel and Barry A.K. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration (1999) 13–14.

176  Andreas F. Lowenfeld, ‘Introduction: The Elements of Procedure: Are They Separately Portable?’ (1997) 45 Am. J. Comp. L. 649, 654 (‘By now, cross-examination by counsel is pretty well accepted in international arbitrations, and for the most part the continental lawyers have learned how to do it. Moreover, and almost as important, arbitrators have learned how to administer cross-examination…’); Julian D.M. Lew and Laurence Shore, ‘International Commercial Arbitration: Harmonizing Cultural Differences’ (1999) 54 Disp. Resol. J. 33, 34–35 (noting that when cross-examination is permitted in arbitrations, attorneys are encouraged, through strict time limits, to focus their questioning on the most important issues):

Even with these accommodations, lawyers from different countries approach cross-examination with different purposes and techniques. English barristers are ‘accustomed to conducting a painstaking cross-examination of a witness’s statement’, and American attorneys cross-examine on materials from depositions and direct testimony in an effort to undermine the witness’s credibility. By contrast, Continental practitioners focus more on questions that might elicit new information, rather than on raising questions about the witness’s credibility.

177  See Rau and Sherman, ‘Tradition and Innovation in International Arbitration Procedure’ 96–97 (citing René David, Arbitration in International Trade (1985) 296); Bernardo M. Cremades, ‘Overcoming the Clash of Legal Cultures: The Role of Interactive Arbitration’ in Lew, Conflicting Legal Cultures in Commercial Arbitration 161; Ambassador Malcolm Wilkey, ‘The Practicalities of Cross-Cultural Arbitration’ in Lew, Conflicting Legal Cultures in Commercial Arbitration 81.

178  Some countries have national laws that limit the nature of and manner in which discovery can be pursued in arbitrations. For example, article 184 of the Swiss Federal Act on Private International Law requires that the arbitral tribunal itself take evidence. Bundesgesetz uber das Internationale Privatrecht vom (enacted 18 December 1987, amended 1 January 2007), BB1 1988 I 5 (Switz.) <http://www.admin.ch/opc/de/classified-compilation/19870312/index.html>. Similarly, Section 1050 of the German Civil Procedure Code forbids arbitrators from ordering parties to disclose information and requires that they seek national court assistance in conducting discovery. See Code of Civil Procedure (promulgated 5 December 2005, amended 24 September 2009) § 1050 (Ger.) <http://www.gesetze-im-internet.de/englisch_zpo/englisch_zpo.html#p3511>.

179  See Rau and Sherman, ‘Tradition and Innovation in International Arbitration Procedure’ 92.

181  Damaška, ‘The Uncertain Fate of Evidentiary Transplants’ 847.

182  See note 140.

183  See International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration, Art. 4.3 (1999).

184  See International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration, Art. 4.3 (2010).

185  See paras 3.32–3.38. Under some readings, it may be regarded as even more permissive than some US jurisdictions.

186  Michael Schneider, ‘President’s Message: Yet another opportunity to waste time and money on procedural skirmishes: The IBA Guidelines on Party Representation’, 31:3 ASA Bull. 497, 498 (2013) (arguing that ‘one would have thought that there was no need to regulate [document exchange and disclosure] also in the Party Representation Guidelines’).

187  See, e.g., UNCITRAL Model Law, art. 12; Swiss Law on Private International Law, art. 180; English Arbitration Act, 1996, §24(1)(a); German ZPO, §1036(2); Belgian Judicial Code, art. 1690(1). A few sources attempt to draw distinctions, for example, by reasoning that while party-appointed arbitrators may be subject to different standards of neutrality, they must all be equally impartial and independent. Compare de Fina, ‘The Party Appointed Arbitrator in International Arbitrations—Role and Selection’, 15 Arb. Int’l 381, 386 (1999) (‘[T]here is some leniency in arbitrations as to the neutrality of a party-appointed arbitrator but there is no such leniency in the absolute requirement of impartiality and independence whatever the circumstances.’); with Tupman, ‘Challenge and Disqualification of Arbitrators in International Commercial Arbitration’, 38 Int’l & Comp. L.Q. 26, 49 (1989) (‘Unquestionably all members of the tribunal in international arbitration should be held to the same standard of independence, whether appointed by a party or not. The concept of a non-neutral arbitrator as it exists in some common law systems simply has no place [in international arbitration].’)

189  See Andreas Lowenfeld, ‘The Party-Appointed Arbitrator in International Controversies: Some Reflections’, 30 Tex. Int’l L.J. 59, 65 (1995) (discussing how party-appointed arbitrators must carefully consider the representations of the appointing party and also serve as translators of the parties’ legal culture).

190  Born, International Commercial Arbitration 2043.

191  Born, International Commercial Arbitration 2042.

192  Notably, pre-appointment interviews are not expressly included in any written procedural rules. Although it is a common practice, it is also a disputed practice. Those who oppose the practice label it as unethical, making it more difficult than other areas to separate procedure from ethics.

193  See also IBA Ethics, art. 5(1); AAA/ABA Code of Ethics, Canon III(B).

195  Van den Berg, ‘Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration’, in Mahnoush Arsanjani et al. (eds.), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (2010) 824.

196  Van den Berg, ‘Dissenting Opinions’ 825.

197  Van den Berg, ‘Dissenting Opinions’ 832.

198  Van den Berg, ‘Dissenting Opinions’ 831.

200  Van den Berg himself makes this point, quoting French Scholar and delegate to the 1899 Hague Peace Conference Chevilier Descamps, who reasoned that dissenting opinions improperly create ‘the appearance of there being two judgments’. Van den Berg, ‘Dissenting Opinions’ 828.

202  The fact that these limits may rest on arbitrators’ subjective intent may raise practical questions about how improper dissents can be identified other than on a case-by-case basis.

205  IBA Guidelines on Conflicts, n. 6.