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This chapter discusses the debates on arbitrator regulation — more specifically, the ways in which international arbitration is over-regulated, under-regulated, less regulated than others, or not regulated at all. The issue in itself is a complex one, uniquely interwoven into the procedures and market conditions under which arbitrators are selected and appointed, therefore categorizing these procedures into an easy binary of over-regulated and under-regulated cannot suffice. In a way, the processes are both over- and under-regulated. The highly strategic nature of the selection process, combined with imperfections in the market for arbitrator services present added complications for effectively regulating the professional conduct of arbitrators. Despite these challenges, the current forms of arbitrator regulation are at least generally more effective than might be supposed in the absence of traditional forms of professional regulation.

This chapter discusses the ‘Functional Thesis’ posited as the underlying theory uniting the concepts discussed in previous chapters regarding the implementation of ethical self-regulation. The Functional Thesis labours under the presumption that acting upon ethical obligations are dependent upon the role of the agent; it assigns ‘functional roles’ to these agents that can create more flexible distinctions between identities presented in titles such as ‘lawyer’, ‘judge’, and so on. The ethical obligations presented in each role are subject to constant change as demanded by the procedural rules of international arbitration, yet a better understanding of these roles can lay the foundations for a code of conduct. And while these roles may shift to the whims of procedure, ethical expectations are, at least, constant over time.

This chapter discusses concerns regarding ethical differences in international arbitration. Traditionally, transnational disputes have been addressed via the attorneys' native legal systems; however, in an increasingly expanding field, there occur contentions of intelligibility within international arbitration. Such issues highlight the need for international standards, although naysayers have pointed out that overcoming cultural and ethical differences in coming to a consensus on an ethical issue are moot. Fortunately, there have been no significant ethical controversies to date, however, which cannot be taken for granted. Furthermore, certain efforts have been undergone in order to provide a baseline from which a standardized form of arbitration can grow, most notably the guidelines initiated by the International Bar Association (IBA), among others. To maintain its independence, legitimacy, and effectiveness, international arbitration needs to develop meaningful self-regulation of attorney ethics.

This chapter discusses the implications of a more holistic, complex understanding of international arbitration on the future of the ethical regulation of international arbitration. With a vision of the future centred on the professionals that manage international disputes and address its on-going challenges, the chapter anticipates the implementation of the ethical self-regulation among the professional collective. While such a view might seem ambitious at first glance, international arbitration is already by nature self-regulatory. A challenge, therefore, for the current crop of arbitrators would be to think beyond the present situation and take future developments in an increasingly globalized world. Undoubtedly many transnational issues that fall under the realm of these professionals will entail both political and economic cross-currents; it is time to entrust these disputes to international arbitrators on the ground that they would be responsibly and effectively managed.

This chapter demonstrates that self-regulation — contrary to popular critique — is less a selfish, irresponsible, and unnecessary practice, and more of a progressive inevitability, in keeping with a transitioning society. Global patterns of self-governance in other areas of progress already justify the use of self-regulation as a necessary aspect of international arbitration, in keeping with this book's thesis of employing self-regulation as a means of legitimatizing international arbitration. And while ‘regulation’ might be rife with negative connotations, ‘self-regulation’ offers a healthy way of preserving structures, establishing integrity among participants, and avoiding the risks of external regulation. Effective counsel regulation within international arbitration can also help facilitate the influx of a large diversity of participants. Moreover, adopting ethical self-regulation extends rather enormous implications for the future of international arbitration, and the evolving roles of the actors therein.

This chapter examines the dual role of arbitrators as service providers and adjudicators. The public conceptualization of international arbitrators has often leaned towards seeing them as either contract providers of sorts or adjudicators, but never both. The arbitrator's status is thus often a conflict between ‘service provider’ and ‘justice provider’. Yet arbitrators are, as discussed in previous chapters, professionals whose ethics are grounded in real-world perspectives. This chapter analyses several ideas and philosophies that corroborate a dual conception of the ideal arbitrator as both service provider and justice provider, and that neither aspect is independent from the other. Several institutions across the world are beginning to recognize this duality, fortunately, as the greatest strength of an international arbitrator is his ability to straddle these dual roles, rather than subject themselves to mere one-dimensional representations.

This chapter discusses the role of expert witnesses in international arbitration, as well as the responsibilities of that role. The roles, functions, and ethical obligations of expert witnesses are still tentatively defined within the realm of international arbitration, but there have been some important regulations and procedures imposed already — the International Bar Association (IBA) Rules of Evidence, for example. This is a significant attempt in regulating the conduct of experts, as well as in laying down the distinctions between party-selected and party-anointed experts, among other innovations. But of course, the legal system employed within the sphere of international arbitration will continue to change in response to unforeseen flaws in entrenched practice — as will be the case for expert witnessing. Perhaps, in order to address one of the possible abuses of the latter, ethical reforms might also be applied to the structure of roles in the courtroom.

This chapter traces the origins of modern international arbitration, from the heyday of Oscar Schacter's ‘Invisible College of International Lawyers’ to its eventual decline to an ethical ‘no-man's land’. The former represents an international community built upon a shared understanding of legal proceedings and ethical conduct — a community that has since been fractured as part of the globalization of the legal profession. It has become increasingly clear to institutions operating within national boundaries that the lawyers operating without clear national boundaries require a restructuring of the old procedures that had emphasized localized practices. The international arbitration we see today is an ethical no-man's land whose political status is uncertain, because it straddles the borders between formally occupied national territories. Yet international arbitration remains a challenging prospect, necessitating reconstitution of the old Invisible College ideals in order to redress the ethical no-man's land.

This chapter explores the participation of third-party funders acting within the scope of international arbitration, as well as the criticisms thereof. Popular contention suggests that litigation financing can lead to the corruption or commodification of justice — an issue that history has repeatedly rendered moot. Throughout the years, there has been a close interrelationship between market forces and the legal profession — the linking of business and profession together has even been practiced by such historical greats as Abraham Lincoln. Furthermore, doing away with third-party funding and market forces in general can limit the functions of justice. The better approach is to recognize the often indelible presence of the marketplace in judiciary proceedings, and thereby establish substantive rules and regulations that can narrow down the specific functions the third-party funder is meant to exercise.

This chapter debunks the Herodotian myth of absolute impartiality in discussing the function of self-regulation within the context of international arbitration. Renowned historian Herodotus was also known for his embellishments of historical characters as impossible, transcendent hero figures — a myth that has often been extended towards judges and arbitrators with regard to impartiality. Such a delusion of absolute objectivity, the chapter argues, is detrimental to the efficiencies that could have been otherwise engendered with ethical self-regulation. Arbitrators are not mythic figures of impartiality — rather, they are professionals who recognize that effective professional ethics is not isolated from, but grounded on, real-world influences, especially the market forces. In this context, lofty, high-minded views of impartiality can only undermine rather than inspire confidence in professional ethics.

The introduction poses the dilemma of legitimizing the nebulous practice of international arbitration through its main participants — the arbitrators, lawyers, experts, and third-party funders. Despite the increasing prominence of international arbitration in recent years, there has yet to be any codified laws governing the ethical behaviour of its participants. Who or what should dictate the ethical duties and professional conduct for those actively involved in the international arbitration community? There are, unfortunately, no definite solutions that can address the complex workings of international arbitration. However, this book proposes that, as far as the international arbitration community is concerned, the community itself must assume its own ethical regulations within international arbitration processes and institutions — rather than national or subnational institutions and authorities — in an act of ethical self-regulation.