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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

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ARBITRATION TRIBUNALS & CODES of BEHAVIOUR

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  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

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