What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?
International Arbitration (4th edition)
Law No. 23,187 regulates the conduct of counsel in proceeding seated in the city of Buenos Aires. These rules limit their application to the conduct of counsel and establish that only a professional lawyer registered as such in the local bar association can act as counsel. These rules do not govern the conduct of counsel in arbitral proceedings sited outside this jurisdiction.
The local bar association has a code of ethics applicable to the lawyers registered in said organization.
The Professional Code of Conduct for Lawyers applies to all members of the Austrian Bar, including those members who act as arbitrators or counsel in an arbitration. There are no specific ethical codes applicable specifically to counsel and arbitrators in an arbitration in Austria.
Apart from the prerequisite for arbitrators to be professionals with university degree, at least 8 years of practice and high moral standards, there are no applicable specific codes or standards in the legislation. However, most of the arbitration institutions have their own code.
Ethical codes and professional standards are set by the jurisdiction in which the practitioner is licensed and the jurisdiction in which the arbitration is seated. Counsel and arbitrators should therefore familiarize themselves with the practice of law rules as well as the ethics rules in the state in which the arbitration will be seated. For example, in certain states, counsel must be licensed to practice in that state, and, if not licensed, may only participate in arbitration if the proceedings arise out of the attorneys’ home state practice, see, e.g., N. J. R. 21-1(a), if they file a verified statement with the state bar association, see, e.g., Fla. Rule 1-3.11 (not applicable to international arbitrations), or if they practice in conjunction with a licensed attorney, see, e.g., Nev. Sup. Ct. Rule 42.2(a)(f).
Generally, arbitrators must abide by standards of impartiality and neutrality. Additionally, some institutions provide guidance on the ethical requirements for arbitrators. For example, the American Bar Association has issued the Code of Ethics for Arbitrators in Commercial Disputes, and the JAMS Arbitrators Ethics Guidelines also provides guidance regarding ethical standards for arbitrators.
As a matter of procedural fairness, arbitrators are expected to be independent and impartial. Although there are no rules specifically governing the conduct of counsel, the rules of the law society of each province set out the ethical and professional obligations of Canadian counsel.
Under the Code of Conduct Regulations of the Cyprus Bar Association, Article 34 provides that, the regulation applies to the relations between advocates and judges, also applies to their relations with arbitrators, experts or any other persons occasionally called to assist the Judge or the arbitrator.
The DLAD has published the ‘Charter for the Conduct of Advocates and Legal Consultants in the Emirate of Dubai’ (the “Charter”). The Charter applies to legal services including arbitration. This Charter however remains in draft form and therefore may be subject to amendment.
The DIFC Court’s Code of Best Legal Professional Practice (“DIFC COP”), applies to both practitioners who undertake contentious work in the DIFC Courts and those who undertake non-contentious work but are licenced to conduct business in the DIFC ‘(and who are registered with and authorised by DFSA (Dubai Financial Services Authority) as Ancillary Service Providers)’. The DIFC COP does not however have any regulatory status.
An arbitrator conducting an arbitration in this jurisdiction will primarily be subject to any applicable ethical codes or professional standards in their own jurisdiction. There are also a number of non-binding ethical codes for arbitrators (including the IBA Rules of Ethics for International Arbitrators and its Guidelines on Conflicts of Interest in International Arbitration).
Further, the 1996 Act states that the tribunal shall (a) act fairly and impartially and (b) adopt procedures to provide a fair means for the resolution of the matters (s.33).
Art. 12 of the UNCITRAL Model Law (Grounds for challenge) requires an arbitrator to ‘disclose any circumstances likely to give rise to justifiable doubts as to his [or her] impartiality or independence’, both when approached in connection with possible appointment as an arbitrator and ‘from the time of his [or her] appointment and throughout the arbitral proceedings’.
In addition to the above disclosure requirement in the IAA, SIAC also maintains its Code of Ethics for an Arbitrator, which addresses the topics of appointment, disclosure, bias, communications, fees, conduct, and confidentiality with respect to arbitrators. The ICC, which has recently established a physical presence in Singapore, released its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration [the Note] in January 2019, providing for guidance on ‘Conduct of Participants in the Arbitration’ as follows:
‘Arbitral tribunals, parties and their representatives are expected to abide by the highest standards of integrity and honesty, to conduct themselves with honour, courtesy and professionalism, and to encourage all other participants in the arbitral proceedings to do the same’. Note at .
Both the Note (at ) and SIAC Rule 13.6 also forbid arbitrators or candidates for selection as arbitrator from engaging in ex parte communications. The Note further encourages parties and arbitral tribunals ‘to draw inspiration from and, where appropriate, to adopt the IBA Guidelines on Party Representation in International Arbitration’.
Members of the Korean Bar are subject to the ethical rules as required under the Attorneys-At-Law Act, and registered foreign attorneys in Korea are subject to ethical rules as required under the Foreign Legal Consultant Act. Attorneys licensed to practice in foreign jurisdictions are subject to the respective ethical rules of such jurisdictions.
Arbitrators in proceedings administered under the KCAB International Arbitration Rules must abide by the KCAB’s Code of Ethics for Arbitrators effective 1 June 2016. Counsel and arbitrators conducting arbitral proceedings in Korea are also expected to comply with ethical codes applicable in their respective states where they are licensed. Arbitrators are free to observe the IBA Rules of Ethics for International Arbitrators and its Guidelines on Conflicts of Interest in International Arbitration.
German law does not provide for specific ethical codes for arbitrators. German lawyers are rather bound by the ethical standards laid down in the Federal Lawyers' Act (Bundesrechtsanwaltsordnung) as well as the Professional Regulations for Lawyers (Berufsordnung für Rechtsanwälte).
The IBA Rules of Ethics for International Arbitrators are widely accepted in German arbitration proceedings.
The Arbitration and Conciliation Act provides that arbitrators should be independent and impartial, treat each party equally and give each party an equal opportunity to present their case. The same is governed by the fifth and seventh schedule. A such, in general practice, for the counsels, the ethical codes and other professional standards are governed under Advocates Act, 1961.
Arbitration institutions usually have their own ethical codes. For instance, BANI has BANI Rule No. PER-01/BANI/09/2016 on Arbitrators, Mediators and the Code of Ethics, which contains the code of conduct for arbitrators.
The code of conduct for counsels is regulated by the rules of the Indonesian Bar Association and applies to all Indonesian law-qualified lawyers.
There are no specific rules that would govern the conduct of counsel or arbitrators in arbitral proceedings. The general rules set forth in the Attorneys’ Act and in the Code of Conduct apply.
Although there are no specific set of legislation and/or rules to govern counsels in conducting arbitration proceedings, advocates and solicitors in Malaysia are expected to abide by the Legal Profession (Practice and Etiquette) Rules 1978.
However, as for arbitrators, the AIAC has produced its own Code of Conduct that governs arbitrators.
France does not impose specific ethical codes or standards on arbitrators or counsel. However, any counsel or arbitrator admitted to the French bar, must respect, even when abroad, the Code of Ethics of the French Bar including the National Rules applicable to the Profession of Attorney (“Règlement Intérieur National de la Profession d'Avocat”), and the Code of Conduct for European Lawyers.
Under the resolution adopted on 26 February 2008 by the Paris Bar, lawyers admitted to the Paris Bar are expressly allowed to prepare witnesses for cross-examination in arbitral proceedings.
Legal counsel are bound by the ethical code of the Bar Association and standard professional code of ethics. While the EAL does not include a specific set of ethical standards applicable to arbitrators and counsel, they are generally expected to adhere to the acceptable ethical standards prevailing in practice, unless they are specifically and extraterritorially bound by certain standards prevailing in their own jurisdiction.
The IBA Guidelines on Party Representation in International Arbitration (2013) are not yet commonly used in the jurisdiction, but are increasingly offering guidance in international proceedings seated in Egypt.
Even there are no mandatory ethical codes that arbitrators or counsel need to follow, it is a duty for arbitrators, according to the Commerce Code, to be independent of the parties and to act with impartiality.
Apart from the above, there are respected organizations, like the Mexican Bar Association hat has its own ethical code, which is usually followed by counsels and arbitrators.
Nigerian lawyers conducting proceedings as counsel or arbitrators are bound by the Rules of Professional Conduct for Legal Practitioners, 2007 in carrying out their services. Also, some arbitral institutions have rules of professional conduct for counsel and arbitrators conducting arbitrations before them. For instance, the Lagos multi-Door Courthouse has its Code of Ethics for Arbitrators.
No specific ethical codes apply to arbitrators in Norway. Counsel is usually an attorney, who is bound by the applicable codes of ethics.
Parties are free to adopt rules on ethics, such as the IBA Guidelines on Conflicts of Interest in International Arbitration, or the Rules of Ethics for International Arbitrators. Philippine counsels are likewise bound to abide by Code of Professional Responsibility.
The SCCA provides a comprehensive “Code of Conduct” which is applicable to arbitrators. As per the Code, inter alia, chief among an arbitrator’s responsibilities is the requirement that the arbitrator be independent and impartial in deciding the matter in dispute. The Code requires arbitrators to make disclosures of any facts which might affect, or appear to affect the perception of their independence or impartiality.
Counsel practicing in Saudi Arabia are subject to the Saudi Code of Law Practice.
The regulations of the arbitration centers will be applicable in terms of ethical standards for arbitrators, since there is no regulatory body in Ecuador regarding professional ethical standards for arbitrators. As for the lawyers, the rules of conduct provided in the Organic Code of the Judicial Power (Código Orgánico de la Función Judicial) will apply. Art. 330 establishes the following:
Duties of the lawyer in defending a case:
1. Act in service of justice and for this purpose collaborate with judges and courts;
2. Represent with loyalty, probity, truthfulness, honesty and good faith;
3. Defend within the compounds of the law, regulations, and norms of the Conduct Code of Professional Practice that will be dictated by the Judicial Council;
4. Instruct and encourage clients to comply with the instructions of the courts and judges, as well as keep respect to them and to the persons involved in the process
5. Fulfill obligations assumed with their representation.
6. Refrain from promoting the public dissemination of reserved aspects of the process in which it intervenes, not yet resolved;
7. Submit all writings in a process with all the elements required;
8. Report persons engaged in illegal practice of law;
9. Proceed according to the laws and with due respect to judicial authorities; and,
10. Any other determined by law.”
There are no well-known ethical codes for arbitrators. Nevertheless, they are bound by the rules of the permanent arbitration tribunals if they are functioning within the tribunal structure.
The counsels representing the parties in arbitration do not adopt any such self-regulation measures- Nevertheless, they must comply with extensive Czech Bar Association regulations, including ethical standards.
There are not professional standards or ethical rules applicable to foreign counsels or arbitrators in international arbitrations seated in Chile. However, the Chilean Bar Ethical Code is binding for the all members of the Chilean Bar and adopts high standards on party representation.
In general, representatives and arbitrators in arbitral tribunals do not need to be lawyers or admitted to the bar. Parties may, however, only be represented by attorneys authorised by Swiss Law or a treaty in appeal proceedings before the Swiss Federal Tribunal.
According to Swiss law, lawyers are required to observe various professional rules such as duty of diligence, independence, avoidance of conflict of interest, and the attorney-client-privilege. Violation of these rules may result in disciplinary action by the cantonal supervisory authorities. In addition, the Swiss Bar Association stipulated various professional standards which should be observed by its members.
There are no arbitration-specific rules of conduct pertaining to attorneys acting as counsels and/or as arbitrators in the Greek legal system. The Code of Lawyers (Law 4194/2013) and the Lawyer’s Code of Conduct are generally applicable and there may be instances in which their provisions are of interest also with regard to arbitration proceedings.
In terms of counsels, they have to conduct their duties with care, accuracy and integrity. Counsels are bound to comply with the provisions of the provisions of the Attorneyship Law and professional rules provided by the Union of Bar Associations of Turkey. Some of these professional rules include avoiding to represent parties with conflicting interests, protecting the client’s right diligently, being in arm’s length when communicating to potential and/or acting witnesses, being discreet about the information that has been entrusted to them and/or obtained while performing their duties.
There is no set of rules or law indicating professional standards for arbitrators save for rules on the impartiality and independence of arbitrators. Accordingly, arbitrators are obliged to disclose any circumstances and or issues, which may impair their impartiality and independence.