David W. Rivkin, co-chair of the International Dispute Resolution Group at Debevoise & Plimpton LLP, presented the 2nd Annual Seoul Arbitration Lecture, at the Seoul International Dispute Resolution Centre. In his address, Mr. Rivkin emphasized that the international arbitration community needs to return to a higher standard of conduct, which will save parties time and cost and will enhance and therefore preserve the system of international arbitration.
Mr. Rivkin spoke about the need for counsel from different legal systems to act in a consistent ethical manner, in the face of what many perceive to be a decline in ethical conduct by counsel in advocating their clients’ cases, as international arbitration matters have grown ever more complex, involving much larger sums in dispute and expanded geographical reach.
He noted that several organizations have worked recently to remedy this situation by providing guidelines on counsel and party conduct that are generally shared by lawyers from different national systems. For example, the International Bar Association (IBA) Guidelines on Party Representation and the London Court of International Arbitration’s Annex to its new arbitration rules provide helpful guidance and will be a benefit to the system. Nonetheless, Mr. Rivkin said, the duty to act ethically is consistent across national codes of professional responsibility, and at their core are standards that lawyers know separate right from wrong. Virtually every code requires that lawyers not mislead a tribunal and not present evidence or arguments that they know to be false. Lawyers should therefore not hide behind hairline distinctions or creative interpretations of rules to engage in conduct that misleads the tribunal in any way, he said.
According to Mr. Rivkin, two of the most common issues that arise with regard to counsel conduct in international arbitration involve submissions to the arbitral tribunal, and document disclosure and production. The speech compared laws and rules from, among others, Korea, India, Japan, England and Wales, New York and Paris, with regard to issues like (i) false and misleading submissions; (ii) disclosure of legal authorities that could harm one’s own case; and (iii) the process of preserving, collecting and producing documents in international arbitration.
The speech also considered whether there should be more or less regulation of counsel conduct in international arbitration. Mr. Rivkin referred to three main streams of thought: (i) a strong aversion to regulation of ethics in international arbitration; (ii) a middle ground, which promotes the publication of guidelines and “soft regulation” of ethical conduct; and (iii) initiatives that entail more and binding regulation. Discussion about these approaches is important, Mr. Rivkin said, not only to promote awareness, but also to emphasize the need for ethical conduct. Mr. Rivkin favored the middle ground such as the IBA Guidelines on Party Representation.
Finally, Mr. Rivkin emphasized the need for arbitral tribunals to be more proactive and to punish unethical behavior when they see it. As with many types of conduct, misbehavior will only diminish when there are clear and effective punishments for such behavior, he said. Arbitrators have a number of tools at their disposal – such as awards of costs – which they should use more frequently in these circumstances. Simple, occasional warnings to counsel when arbitrators see misleading conduct would deter similar activity in the future.
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