Ethics in International Arbitration: Soft Law Guidance for Arbitrators and Party Representatives - Chapter 4 - Soft Law in International Arbitration - Second Edition
EDNA SUSSMAN is a full time independent arbitrator and mediator and is the Distinguished ADR Practitioner in Residence at Fordham University School of Law. Formerly a litigation partner at the law firm of White & Case LLP, Ms. Sussman serves on many institutional arbitration panels in jurisdictions around the world and has served as an arbitrator in over three hundred complex commercial disputes under various institutional rules.
Ms. Sussman served as the Chair of the New York International Arbitration Center, Chair of the AAA-ICDR Foundation, President of the College of Commercial Arbitrator, and on the Board and the Executive Committee of the AAA, as well as the Board and Executive Committee of the College of Commercial Arbitrators. She serves on the Advisory Council of the ICC’s Task Force on Arbitration and ADR and is a fellow of the Chartered Institute of Arbitrators. She is certified by the International Mediation Institute. Ms. Sussman is a former Chair of the Dispute Resolution Section of the New York State Bar Association. She serves as Co-Editor in Chief of the New York Dispute Resolution Lawyer. She was formerly Co-Chair of the Arbitration Committees of the ABA's Section of International Law and Section of Dispute Resolution and served as the Chair of the Renewable Energy Committee and the Alternative Dispute Resolution Committee of the AAA's Section of Environment Energy and Resources. Ms. Sussman served as the Chair of the New York City Bar Association's Energy Committee and as the Chair of the Alternative Dispute Resolution Committee of the Energy Bar Association. A graduate of Barnard College 1970, and Columbia Law School 1973, Ms. Sussman has lectured and published widely on arbitration, mediation, energy and environmental issues.
SHERMAN W. KAHN is an arbitrator and represents clients in international arbitrations presenting complex technical and commercial issues. He has arbitrated under the ICC, AAA, ICDR, CPR, JCAA, UNCITRAL and other rules. He has sat as chair, sole arbitrator, and wing arbitrator in international and domestic arbitrations on subjects including IT outsourcing, software development, biotechnology and pharmaceuticals, mining, patent infringement, standard essential patents, trademark licensing, unfair competition and trade disparagement, and commercial issues. He has also provided advice regarding clause drafting and pre-dispute issues in connection with major construction and infrastructure projects. He is on the International Centre for Dispute Resolution (ICDR) Panel of Arbitrators, the American Arbitration Association Roster of Commercial Arbitrators and the CPR Distinguished Panel of Neutrals and the Korean Commercial Arbitration Board (KCAB) Panel of International Arbitrators. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and a member of the Silicon Valley Arbitration and Mediation Center Tech List. He also acts as a mediator. Mr. Kahn has more than twenty-five years of experience in patent litigation including matters involving programmable logic devices, microprocessors and controllers, memory devices, construction equipment, medical devices, supercomputers, LCD & PDP display devices, LED Lighting, computer software, networking technologies and biotechnology. He also litigates outsourcing, trade-secret, trademark, copyright, and antitrust matters.
Originally from Soft Law in International Arbitration, Second Edition
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Introduction
The integrity of the arbitration process is essential to preserve arbitration’s ability to offer parties a fair forum for resolution of their disputes and to maintain trust in the process. To establish clarity and uniformity with respect to ethical obligations and assure such integrity, many arbitral institutions and bar associations have developed ethics codes, rules and guidelines and the number of these resources has been increasing in recent years. These soft law tools provide, along with applicable national law, the guidance required to foster ethical conduct and adherence to a common set of ethical obligations for the participants in an arbitration.
It is not possible to review all of the many codes, rules and guidelines that have been developed to address ethical considerations in arbitration. For example, many arbitration providers issue ethical guidance or include ethical principles in their arbitration rules. This chapter does not cover those except to the extent that they are included in more general ethical guidance, but participants in administered arbitration should review the specific guidance from the relevant provider. The eight documents reproduced and discussed in this chapter are among the most prominent:
1. American Bar Association and American Arbitration Association Code of Ethics for Arbitrators
2. International Bar Association Rules of Ethics for International Arbitrators
3. International Bar Association Guidelines on Conflicts of Interest in International Arbitration
4. CIArb Code of Professional and Ethical Conduct
5. International Bar Association Guidelines on Party Representation in International Arbitration
6. Club Español del Arbitraje Code of Good Practices (looking at arbitrators and lawyers)
7. CIArb Guidelines on Interviews for Prospective Arbitrators
8. ICCA Guidelines on Standards of Practice in International Arbitration
The first four guidelines deal with the arbitrators themselves and are intended to ensure that the integrity of the arbitration process is not subverted by the participation of arbitrators who do not meet the standards enunciated. The fifth guideline is intended to level the playing field in international arbitration, where parties may be prejudiced by the often significant variances in the ethical obligations governing conduct by party representatives and to curb improper conduct by party representatives. The sixth guideline contains guidance both for arbitrators and for counsel. The seventh guideline addresses interviews with prospective arbitrators – a particular persistent issue that arises in arbitration. The final guideline is addressed to standards of civility for all participants in international arbitration.
This chapter also includes a brief discussion of another important initiative that is underway, but not yet complete at the time of publication, the ICSID and UNCITRAL Code of Conduct for Arbitrators in investor-state arbitration. This standard, when finalized, is likely to be quite influential.