Transcript DISPUTE RESOLUTION in the INTERNATIONAL OIL & GAS …

ARBITRATION TRIBUNALS &
CODES of BEHAVIOUR
a presentation by
HEW R. DUNDAS
Chartered Arbitrator DipICArb
International Arbitrator & Mediator
President CIArb
Quito, Ecuador
10th July 2007
OVERVIEW of PRESENTATION
Introduction
 International Commercial Arbitration
 Composition of Arbitral Tribunals
 Arbitral Tribunals
 Codes of Conduct & Guidelines
 Current Issues
 Conclusions

INTERNATIONAL COMMERCIAL
ARBITRATION (1): OVERVIEW

What Is It ?
“International”
“Commercial”
“Arbitration”
Profusion of Relevant/Applicable Laws
 Institutions and Tribunals
 Finality and Enforceability

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

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

INTL. COMM. ARBITRATION (4)
AWARDS & ENFORCEMENT

Appeals
Jurisdiction
Procedural Failures
Issues of Law
Exequatur
 Enforcement
 New York Convention 1958

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
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
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

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

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
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
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

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
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

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

CURRENT ISSUES
AFFECTING CONDUCT
Arbitrator Interviews
 Non-Qualified Arbitrators
 Non-Professional Arbitrators
 Tribunal Dynamics
 Cultural Differences
 Arbitrators Appointed by States
 “The Club”

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
CONCLUSIONS (2)
THANK YOU for
your ATTENTION