WCARTSIXTH ANNUAL ENERGY, MINING AND

RESOURCES ARBITRATION CONFERENCE

Issues of Conflicts and Ethics in International Arbitration

● Murray A. Clemens, Q.C. (Chair), Nathanson, Schachter & Thompson, LLP, Vancouver

•www.icdr.org

● Steven K. Andersen, Esq., Vice President, International Development International Centre for Dispute Resolution, Salt Lake City, Utah

● Murray L. Smith (Chair), LLM Chartered Arbitrator, Smith Barristers, Vancouver

● John A. Terry, Torys, Toronto

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Ethical Questions

1. What ethical issues arise when

dealing with the appointment of

the arbitration tribunal and how do

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they differ when using different

appointment methodologies?

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ICDR Case Filing Trends

Trends: Global Leader of “INTERNATIONAL” Cases since 20012011 ICDR Cases=994, 2011 ICC Cases= 794,

ICDR Mediations=95, ICDR Webfile = 163

•www.icdr.org

There were 44 Challenges of Arbitrators in the 994 ICDR 2011 Caseload (about 4%).

– 35 at Appointment Disclosure Stage

• 21 Removed (60%)

• 14 Reaffirmed (40%)

Ethical Questions in International Arbitration

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• 14 Reaffirmed (40%)

– 9 at Pre-hearing/Award stage

• 2 Removed (20%)

• 7 Reaffirmed (80%)

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CordeliaRegan

King Lear

Goneril

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Arbitrator

Institution

Arbitrator

Arbitrator

Party

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What did the King want to hear or in other words, what do institutions and parties want to have in arbitrator disclosures?

Should the two sisters or party-appointed arbitrators need to clarify their partiality, if any, to the parties in the case?

Ethical Questions in International Arbitration

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to the parties in the case?

• What should have Cordelia disclosed to King Lear or

to what degree do arbitrators need to disclose

information?

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7. Appoint your ArbitratorsClaimant

Jose Martinez 6

John Smith X

Ricardo Suarez X

Antonio San Martin 3

James Jones X

Linda Cruz 4

Charles Brown 10

Ramon Gonzales X

Respondent

Jose Martinez X

John Smith 1

Ricardo Suarez 10

Antonio San Martin 3

James Jones X

Linda Cruz 2

Charles Brown 6

Ramon Gonzales X

1st

2nd

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Ramon Gonzales X

Francisco Jimenez 2

George Webber 5

Esteban Garza 7

Barry Lewis 9

Mercedes Sala 1

Nathaniel Peters X

Sarah Durham 8

Ramon Gonzales X

Francisco Jimenez 5

George Webber X

Esteban Garza 8

Barry Lewis X

Mercedes Sala 9

Nathaniel Peters 4

Sarah Durham 7

3rd

Ethical Questions

2. What issues arise from a practical

and ethical point of view when a party

wishes to interview potential arbitrators

before appointment? What are the limits

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before appointment? What are the limits

of matters to be discussed and what kind

of disclosure should be made following

appointment?

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Ethical Questions

3. An issue which you believe is

important if not pivotal to the

result is not being addressed by

the parties. Do you raise the point,

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the parties. Do you raise the point,

when and how? If the issue occurs

to you after the close of the

hearing, what do you do?

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Ethical Questions

4. You have conducted a mediation and

the parties have reached a settlement of

a complex dispute. Both parties ask to

you to act as an arbitrator should

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differences arise in the implementation

of the dispute. What are the ethical

and practical issues. How are they

addressed?

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5. What resources are available in terms of rules and ethical codes to help reconcile differing practices models

Ethical Questions in International Arbitration

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differing practices models around the world?

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The 1977 Code of Ethics language provided for

disclosures WHICH ARE LIKELY TO AFFECT

IMPARTIALITY OR WHICH MIGHT REASONABLY

CREATE AN APPEARANCE OF PARTIALITY OR

BIAS.

The 2004 Code of Ethics language provides

Ethical Questions in International Arbitration

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The 2004 Code of Ethics language provides

for disclosures WHICH MIGHT

REASONABLY AFFECT IMPARTIALITY OR

LACK OF INDEPENDENCE IN THE EYES OF

ANY OF THE PARTIES.

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How carefully do parties manageappropriate ex-parte communications withtheir potential party appointed arbitrator?

Ethical Questions in International Arbitration

1. General nature of the controversy

2. Discuss the candidate’s qualifications

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2. Discuss the candidate’s qualifications

3. Availability to serve without causing delay

4. Independence in relation to the parties

5. Suitability of candidates for presiding arbitrator

Based upon the Code of Ethics, what sort of commitments should be made by the arbitrators?

Ethical Questions in International Arbitration

Availability to Serve:

The 2004 revision imposes an obligation on

Duty to:

•Public

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imposes an obligation on the arbitrator to determine his or her competence and availability to serve in the case.

•Parties

•Process

•Participants (all)

•Pro bono

Ethical Questions

6. Are you qualified to undertake and complete the appointment and are you able (time, availability, health, other) to undertake and complete the arbitration within the required time? We can discuss this issue in terms of what kind

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discuss this issue in terms of what kind of a personal examination should one subject oneself to and to what extent is modesty a virtue.

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Ethical Questions

7. What does one do when parties are represented by counsel with different experience and skill? In this circumstance, how does an arbitrator ensure that the parties involved in an arbitration are fairly informed and have

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arbitration are fairly informed and have an adequate understanding of the procedural aspects and legal issues? Is there a role for the arbitrator to “even the playing field”?

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Ethical Questions

8. Fees and payment terms. Is there an obligation to give particularized accounts?

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accounts?

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Ethical Questions

9. Do you have a duty to move an arbitration on when the claimant, either advertently or inadvertently is not pressing the matter forward and the respondent is only too happy to stand idle? This is a situation where arbitration is markedly different than litigation. In litigation, the defending party is usually brought into the process against its will, whereas in arbitration the parties

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process against its will, whereas in arbitration the parties have agreed to resolve their disputes in arbitration. This distinction was commented on by the British Columbia Court of Appeal in a recent decision Premium Brands Operating GP Inc. v. Turner Distribution Systems Ltd., 2011 BCCA 75 http://www.courts.gov.bc.ca/jdb-txt/CA/11/00/2011BCCA0075cor1.htm

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WCARTSIXTH ANNUAL ENERGY, MINING AND RESOURCES

ARBITRATION CONFERENCE

Issues of Conflicts and Ethics in International Arbitration

● Murray A. Clemens, Q.C. (Chair), Nathanson, Schachter & Thompson, LLP, Vancouver

● Steven K. Andersen, Esq., Vice President,

•www.icdr.org

● Steven K. Andersen, Esq., Vice President, International Development International Centre for Dispute Resolution, Salt Lake City, Utah

● Murray L. Smith (Chair), LLM Chartered Arbitrator, Smith Barristers, Vancouver

● John A. Terry, Torys, Toronto

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