Originally from The Law and Practice of International Arbitration: Essays in Honor of John Fellas – Preview Page

1. Introduction 

During a recent visit to the International Criminal Tribunal for the former Yugoslavia, I met one of the staff lawyers who explained that in discussing preparation of the witnesses for cross-examination during trial several lawyers from different countries expressed opposing views on the ethics questions involved. An Australian lawyer felt that from his perspective it would be unethical to prepare a witness; a Canadian lawyer said it would be illegal; and an American lawyer’s view was that not to prepare a witness would be malpractice.2 

Professional ethics are an evergreen issue in international arbitration. In this arena, lawyers from every kind of legal tradition—whether common law, civil law, mixed or other—come together and hash out cases before a similarly diverse tribunal. Many values are shared; many others are not. Some jurisdictions permit their lawyers to act in certain ways that are denied to lawyers from other jurisdictions. Occasionally, this means that one side has an advantage over the other. In these circumstances, when lawyers from different jurisdictions meet across the hearing room, one having gained an advantage that is denied to the other by their rules of professional ethics, feelings of injustice can arise. The client may feel like the process was unfair, and the lawyers may feel frustrated that they were unable to argue their client’s case as strongly as they otherwise could.