Rau: Arbitrators Without Powers? Disqualifying Counsel in Arbitral Proceedings

Alan Scott Rau (Univ. of Texas, Austin - Law) has posted Arbitrators Without Powers? Disqualifying Counsel in Arbitral Proceedings (Arbitration International, forthcoming). Here's the abstract:

This is a longer version of a presentation made at the 17th Annual IBA International Arbitration Day in Paris, on February 14, 2014.

The succession of conferences and the proliferation of soft law instruments are always pretty reliable indicators that a particular problem has risen to the level of the consciousness of the international community. That is abundantly true here: They are testimony to a general recognition of the need to identify what limits there may be to the permissible conduct of counsel in international arbitration, and -- always the most interesting question -- to identify the appropriate fora in which such questions can be addressed and resolved.

My focus here will be on a relatively small piece of the overall puzzle: Rather than to approach globally the problem of sanctions for supposed "counsel misconduct," I want instead to focus on one particular sanction -- one that is growing, and promises to grow even more, in importance: the ability of the tribunal to "exclude," or "disqualify," counsel of one of the parties from the proceedings.

While the abstract "power" to do so should not be doubted, the Devil, as usual, is lurking in the details. I discuss two critical contexts in which the question may arise -- disqualification on the ground of some relationship with a member of the tribunal, and disqualification on the ground of some conflict of interest with another client arising out of a prior representation. Each is beginning to be the subject of a developing arbitral jurisprudence. And I think the overarching theme in both cases is the same: The tribunal ought not to be concerned with questions of deontology -- with the particular content of national rules of professional conduct -- and ought not in fact to think of itself as engaging in discipline at all; disqualification is not "principled," and the sole definition of the tribunal's task is to ensure the integrity of the process against the imputation of bias or unfairness between the parties.

In this enterprise the elaboration of "transnational rules" of conduct will have only a limited importance: Capturing the "core concepts" and "common grounds" in the various contingent national formulations, they will inevitably and with some justice be deprecated as minimalist lawmaking -- that is, "lawmaking" content only to set out what amounts to a lowest common denominator. Of course, standards intended to be applied in a variety of transnational settings can only find acceptance if they are consciously abstracted from local legal cultures -- if they refuse to make the difficult choices between them. At the same time they will also be closely congruent with the neo-liberal agenda that privileges arbitral autonomy, serving to forestall officious meddling by adventuresome state courts: And precisely because of their regulatory spareness, transnational rules will have the virtue of directing the attention of arbitral tribunals to the core of what alone is critical -- that is, to what is minimally necessary to ensure the fairness of the proceedings.