Ethical Ordering in Transnational Legal Practice? A Review of Catherine A. Rogers's Ethics in International Arbitration

Abstract

This Review Essay explores the major contributions of the first systematic effort to describe and call for international and “internal regulation” of ethics standards for international arbitration, including commercial, investor-state and other forms of trans-border arbitration of legal disputes. This Essay first situates the particular ethical dilemmas in international arbitration within the larger jurisprudential questions raised by the legal justifications that create and support international arbitration. It then describes some of the particular ethical issues, including conflicts of interests, use of experts, legal systemic differences in rules, ethics and practices, third party funding of arbitrations, discovery and evidentiary rules and conflicts and variations in treatment of these issues as a form of “comparative ethics” that must be “harmonized” in some way. The Essay concludes with suggestions for thinking through some of the dilemmas in creating a cross-legal system of ethics and standards regime, including questions of content, enforcement, commitment, and transparency, while preserving some of the conflicting values of international arbitration — privacy, party choice, and consent over both process and substantive issues. The Essay raises the worry that macro-ethical concerns about systemic legitimacy and transparency may be different from micro-ethical behavioral and party-level ethical issues. International arbitration ethics concerns demonstrate that modern law and ethics are truly “transnational” — not tethered to a particular legal system, with all the issues and contradictions that such trans-systemic legal regimes have come to represent.