1 / 19

ARBITRATION TRIBUNALS & CODES of BEHAVIOUR

ARBITRATION TRIBUNALS & CODES of BEHAVIOUR. a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator & Mediator President CIArb Quito, Ecuador 10 th July 2007. OVERVIEW of PRESENTATION. Introduction International Commercial Arbitration

rock
Download Presentation

ARBITRATION TRIBUNALS & CODES of BEHAVIOUR

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. ARBITRATION TRIBUNALS & CODES of BEHAVIOUR a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator & Mediator President CIArb Quito, Ecuador 10th July 2007

  2. OVERVIEW of PRESENTATION • Introduction • International Commercial Arbitration • Composition of Arbitral Tribunals • Arbitral Tribunals • Codes of Conduct & Guidelines • Current Issues • Conclusions

  3. INTERNATIONAL COMMERCIAL ARBITRATION (1): OVERVIEW • What Is It ? • “International” • “Commercial” • “Arbitration” • Profusion of Relevant/Applicable Laws • Institutions and Tribunals • Finality and Enforceability

  4. INTL. COMM. ARBITRATION (2) INSTITUTIONS • UNCITRAL • ICSID/NAFTA/ECT • ICC/LCIA • Chartered Institute of Arbitrators • Regional Institutions incl. CIETAC/AAA • LMAA • GAFTA/FOSFA/LME/RSA • Other

  5. INTL. COMM. ARBITRATION (3)PROFUSION of LAWS • Law of the Contract (Lex Causae) • Law of the Arbitration Agreement • Law governing Capacity of Parties • Law of the Arbitration (Lex Arbitri) • Law of Seat (Lex Curiae) • Law of Place of Enforcement • Other Potentially Applicable Laws

  6. INTL. COMM. ARBITRATION (4)AWARDS & ENFORCEMENT • Appeals • Jurisdiction • Procedural Failures • Issues of Law • Exequatur • Enforcement • New York Convention 1958

  7. ARBITRAL TRIBUNALS (1) - OPTIONS • As Provided by Agreed Rules or Lex Arbitri • 1 Arbitrator • 3 Arbitrators • 2 Arbitrators + Umpire • 5 Arbitrators • Party-Appointed Arbitrators (PAAs) • Appointment of Chairman • by the PAAs • By the Institution

  8. ARBITRAL TRIBUNALS (2) – CONDUCT • Codes of Conduct vs Practice Guidelines • CIArb/ICC/ABA/SIAC/Other • IBA Disclosure Guidelines • Mandatory or Guidelines ? • CIArb – Misconduct Proceedings • Effect in Court of Law • Burden of Justification

  9. IBA GUIDELINES (1) • “Guidelines on Conflict of Interest in International Arbitration” [22nd May 2004] • The International Norm • Keys are Impartiality and Independence • Emphasis on Disclosure • Applicable to All International Arbitrators • Effect of Breach • 1987 Rules of Ethics Remain in Force

  10. IBA GUIDELINES (2) • Arbitrator Must Decline Appointment/Resign • View of “Fair-Minded Informed Observer” • Disclosure • Objection by the Parties • Waiver • Red List – Waivable and Non-Waivable • Orange List – Duty to Disclose • Green List – No Duty to Disclose

  11. ABA CODE of ETHICS (1) • “Code of Ethics for Arbitrators in Commercial Disputes” [9th February 2004] • Domestic and International Arbitration • Recognises Differences Judges/Arbitrators • Allows for Non-Neutral Party-Appointees • Applies in US Domestic Arbitration • Californian Code Goes Further • Californian Courts Go Even Further

  12. ABA CODE of ETHICS (2) • “An Arbitrator Should Uphold the Integrity and Fairness of the Process” • Avoid Impropriety in Communicating with Parties • Conduct Proceedings Fairly and Diligently • Respect Trust and Confidentiality • Integrity Regarding Fees/Expenses • Advertising Must Be Truthful/Accurate • Advertising Not Permitted in Other Jurisdictions

  13. CIArb CODE of CONDUCT (1) • CIArb is Self-Regulating Professional Institute • CIArb “Code of Professional And Ethical Conduct for Members” [January 2007] • Binding on All CIArb Members • Arbitrators/Mediators/Any Other • Breach of Code is Professional Misconduct • Full Disciplinary Process

  14. CIArb CODE of CONDUCT (2) • Avoid Conduct Unbecoming • Uphold Integrity & Fairness of the Process • Disclosure of Potential Conflicts • Failure to Disclose may lead to disqualification. • Accept Appointment Only If Arbitrator has: • Suitable Experience and Ability • Available time to proceed with the arbitration • Can Publicise Qualifications Experience • No Advertising

  15. CIArb CODE of CONDUCT (3) • Overriding obligation to act fairly and impartially as between the parties, at all stages of the proceedings • No Delegation of Responsibilities • Observe Trust and Confidentiality • No Private Communications Arbitrator/Party • Includes telephone • Integrity Regarding Fees/Expenses • Reasonable Fees and expenses

  16. CIArb GOOD PRACTICE GUIDELINES • “Good”, not necessarily “Best”, Practice • Assistance for Arbitrators • >1,000 Man-Years of Experience • Origins in English Arbitration Act 1996 • Now Internationalised • Covers practical issues not covered by Statutes • Regulatory Effect

  17. CURRENT ISSUES AFFECTING CONDUCT • Arbitrator Interviews • Non-Qualified Arbitrators • Non-Professional Arbitrators • Tribunal Dynamics • Cultural Differences • Arbitrators Appointed by States • “The Club”

  18. CONCLUSIONS (1) • Do Minimum Standards Exist ? • Yes !!! • Can They Be Improved ? • Possibly, but Not Obviously • Absurd Court Decisions • Risk of Over-Regulation • Common Sense Must Prevail

  19. CONCLUSIONS (2) THANK YOU for your ATTENTION

More Related