Ethical Rules and Standards in International Arbitration Across Latin America
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International arbitration has experienced strong growth in Latin America in recent decades, with the pool of arbitrators and counsels from the region involved in international arbitration proceedings, as well as the number of arbitral proceedings seated in Latin American countries, having expanded considerably.[2]
The interaction of arbitrators, counsels and parties of several cultural and legal traditions is inherent to international arbitration, and it has led to a growing debate regarding (1) which guidelines or rules shall govern their conduct in international arbitration proceedings and (2) how potential conflicts derived from different behaviours during the proceedings shall be resolved.[3]
In international arbitration, the variety of ethical rules poses significant challenges. Not all the participants of an international arbitration proceeding are subject to the same ethical rules, and it is not always clear which rules shall apply to each of them. Moreover, what is considered ‘acceptable’ or ‘expected’ conduct may vary significantly among practitioners from different countries and legal traditions.
The above ultimately poses the question on whether the lack of common ethical rules for international arbitration practitioners may un-level the playing field, thus leading to the need to look for solutions to level the court.
This contribution intends to shed some light on this matter by exploring the ethical rules through regional and local lenses.
This chapter will address (1) the evolution of ethical rules in international arbitration; (2) the status of ethical rules in international arbitration in Latin America, with special reference to regulations of Argentina, Brazil, Mexico and Peru; (3) the applicable law to ethical conflicts in international arbitration proceedings and the harmonisation challenges; and (4) our concluding remarks.
Evolution of ethical rules in international arbitration
Interaction between practitioners from different cultural and legal traditions is part of the international arbitration’s essence and constitutes an inevitable consequence of arbitration’s success as a global means of international dispute resolution.[4] However, cultural and legal diversity might lead to complex substantive and procedural issues regarding international arbitration practitioners’ standard of conduct.
Given that ethical codes in most legal systems do not state expressly whether they extend extraterritorially or embrace international arbitral proceedings abroad, it has been said that ‘international arbitration dwells in an ethical no man’s land’.[5] Further, considering the uncertainty surrounding the ethical rules that may apply in international arbitration proceedings, it was suggested that there is a ‘current, compelling need for the development of a Code of Ethics in International Arbitration’.[6]
As explained by Rogers,[7] concern about regulation of professional conduct in international arbitration has spawned dozens of efforts at the development of international codes of ethics since at least the middle of the last century.[8]
Notwithstanding the relevance of these instruments, most of them did not contain rules aimed at dealing with ethical issues in international arbitration, but enshrined general principles regarding professional practice at international level.
More recently, a number of instruments have been developed specifically to address issues related to the conduct of international arbitration practitioners. On 22 May 2004, the IBA released its Guidelines on Conflicts of Interest in International Arbitration, which intended to provide a uniform standard in making decisions concerning disclosure, objections and challenges of arbitrators, and ultimately to ensure that arbitration proceedings are not hindered by ever-increasing conflict of interest issues.[9] The IBA Guidelines on Conflict of Interest were revised on 23 October 2014.[10]
On 25 May 2013, the IBA published the Guidelines on Party Representation in International Arbitration, a body of rules ‘inspired by the principle that party representatives should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense, including tactics aimed at obstructing the arbitration proceedings’.[11]
Despite their non-binding nature, the IBA Guidelines on Conflicts of Interest and on Party Representation have become quite influential and are frequently seen as providing relevant criteria for assessing the conduct of arbitrators and party representatives in international arbitration proceedings.[12]
As for the Spanish speaking institutions, in 2019, the Club Español del Arbitraje (CEA) released the Code of Good Arbitral Practices, as a revision of the former 2005 code, which was only directed to arbitral institutions. The 2019 CEA Code of Good Arbitral Practices extends its recommendations to all professionals involved in international arbitration, including arbitrators, counsel, experts and third-party funders, in order for them to abide by stricter ethical rules.[13]
In 2021, the International Council for Commercial Arbitration (ICCA) published the Guidelines on Standards of Practice in International Arbitration (ICCA Guidelines).[14] The ICCA Guidelines were created to reflect the broad consensus in the international arbitration community as to the general principles of civility and ethical conduct that all participants during the course of an international arbitration have a right to expect and request. The ICCA Guidelines apply to the parties and their representatives, counsels, arbitrators, tribunal secretaries, personnel employed by arbitral institutions, fact witnesses, experts (either tribunal-appointed or party-appointed), professionals and all other persons participating in the arbitration proceedings in any capacity.[15]
As regards Latin America, these international guidelines have started to be used as soft law in international arbitration proceedings seated in the region.
Irrespective of their increasing relevance, the existing ethical codes or guidelines do not provide for the prevailing law to resolve ethical issues related to international arbitration practitioners (if any).
Status of ethical rules in international arbitration in Latin America: a comparative study
Most Latin American countries have local laws regulating the exercise of the legal profession that may apply to international arbitration practitioners. Conversely, arbitration laws do not usually set forth specific provisions on the matter. Instead, several Latin American arbitral centres have adopted ethical rules or code of ethics; while some of them are only directed to arbitrators, mediators and conciliators, other codes extend their application to all practitioners involved in proceedings administrated by the respective centre.[16] As explained in this section, despite the variety of sources and legislations that may exist, it is possible to find some fundamental ethical rules shared by Latin American countries.
Due to the limitations of this contribution, we will examine the current status of the matter at the following jurisdictions: Argentina, Brazil, Mexico and Peru, summarising in particular the source and scope of application of the ethical rules in each of those countries, and applicable procedures and sanctions in case of breach of ethical duties.
Argentina
Source of ethical rules
Argentina is a federal republic, with both federal and provincial levels of political organisation. While substantial law is enacted by the National Congress and is applicable to the whole nation, procedural rules are passed by the provincial legislative branches.[17] Likewise, the police power relies on both the federal state and the local states in connection with activities performed in their respective jurisdictions (including the practice of the legal profession).[18]
As for the arbitral practice, until 2015, arbitration proceedings were exclusively governed by the procedural codes of each jurisdiction (that is, the federal state and the provincial states). The National Code of Civil and Commercial Procedure (NCCCP)[19] governed arbitration proceedings under the federal jurisdiction and those seated in the city of Buenos Aires, while most of the provincial procedural codes contained similar provisions to the federal regulation.
In 2015, the National Civil and Commercial Code (NCCC)[20] entered into force and, since then, the substantive regulation of the arbitration agreement is governed by the new code, the provisions of which are applicable to all jurisdictions.[21] Procedural matters related to assistance and review of domestic arbitration proceedings are still governed by the local (or federal) procedural codes (as the case may be).[22]
In 2018, Argentina enacted Law No. 27,449 on International Commercial Arbitration (ICAL),[23] mostly adopting the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law), as amended in 2006. Thus, the country adopted a dualist regime under which domestic arbitration proceedings are regulated by the NCCC and the procedural local codes (for procedural matters), while international commercial arbitration proceedings are exclusively regulated by the ICAL.[24]
The ICAL does not contain a specific regulation governing ethics in international arbitration. Nevertheless, it sets forth certain rules related to disclosure duties of arbitrators[25] and the power of the arbitral tribunal to conduct the arbitration in such manner as it considers appropriate failing an agreement between the parties on the rules of procedure.[26] The NCCC contains a similar provision.[27]
As anticipated above, the police power relies on the local states. Hence, each local state has its own law governing the practice of professions, including the legal profession at the respective jurisdictions. In turn, local laws governing the legal profession empower the respective bar association to approve the code of ethics applicable to counsel enrolled therein and practicing at the relevant jurisdiction.
The City of Buenos Aires is the main seat of arbitration in Argentina. The ethical rules for counsel practicing in that city are set forth in Law No. 23,187[28] and the Code of Ethics of the Buenos Aires Public Bar Association (CPACF).[29]
Among other provisions, Law No. 23,187 and the CPACF Code of Ethics Rules sets forth attorneys’ obligations towards the community; clients; colleagues and the judiciary, including the duty of (1) conduct with loyalty, probity and good faith;[30] (2) taking care of the clients’ interests;[31] (3) respect strictly the professional secrecy;[32] (4) not deliberately use false evidence;[33] and (5) not to act recklessly or maliciously.[34]
Further, some local arbitration centres also have their own rules of ethics. In this vein, the Commercial Arbitration and Mediation Centre (CEMARC) have a code of ethics,[35] which applies to all the arbitration proceedings (both national and international) brought before it and provides, inter alia, the arbitrator’s obligation to be impartial, honest, diligent and respectful,[36] as well as the parties’ duty to act with loyalty and good faith.[37]
Ethical rules’ scope of application
According to Article 2 of the ICAL, that law applies to all international commercial arbitrations seated in Argentina.
Local regulations governing the practice of the legal profession extend to all counsel exercising the practice of law in the respective jurisdictions.
Law 23,187 is applicable to counsel allowed to exercise the legal profession in the city of Buenos Aires and at Federal Courts.[38] In order to practice law in the city of Buenos Aires, foreign lawyers shall comply with the same requirements as local counsels (i.e., hold a law degree issued by a national, provincial or recognised private or foreign university, duly validated, and be enrolled in the bar association).[39]
On the other hand, the codes of ethics enacted by the bar associations extend their application to all their members acting within their jurisdiction. In the City of Buenos Aires, the CPACF Code of Ethics applies to all CPACF’s members practicing in that city.[40]
Neither the local laws governing the practice of the legal profession, nor the codes of ethics enacted by the bar associations expressly provide that their rules apply to international arbitration proceedings. A similar approach prevails in the provincial regulations.
Finally, the rules of ethics enacted by local arbitration centres apply to arbitrators or all the participants of arbitration proceedings administered by them (depending on the scope of application of those rules in each case).[41]
Procedures and sanctions in case of breach of ethical rules
The legal profession laws (either provincial or national) delegate to the bar associations the disciplinary power to control the compliance with the rules of ethics set forth by them.[42] The decision made by the disciplinary tribunals can be appealed before the Judiciary, which has regularly applied very restrictive standards of review (based on ‘arbitrariness’).[43]
As for the City of Buenos Aires, Article 43 of Law No. 23,187 establishes that the CPACF is solely responsible for ensuring the correct exercise of the legal profession. For such purpose, the CPACF Disciplinary Tribunal has the power to exercise disciplinary powers over counsel enrolled therein acting in that city, notwithstanding the disciplinary powers of the judicial court (limited to the control of counsel’s conduct at the proceedings before them)[44] and civil, criminal or administrative liability that may be attributed to the members of the Buenos Aires Public Bar Association.[45]
As a result thereof, in the absence of specific rules governing counsel and arbitrators acting in international arbitration proceedings, counsel acting in an arbitration proceeding seated in the city of Buenos Aires shall be enrolled in the CPACF and deemed subject to the ethical rules set forth in Law No. 23,187 and in the CPACF Code of Ethics, as well as to the disciplinary powers of the CPACF Disciplinary Tribunal.[46] Conversely, counsel acting in international arbitration with seat abroad the country (even those enrolled in the CPACF) would not fall within the domestic rules of ethics’ scope of application nor within the bar associations’ disciplinary powers either, since both limit their scope of application to the professional practice in the city of Buenos Aires.
Brazil
Source of ethical rules
Arbitration in Brazil is governed by Law No. 9,307 (Brazilian Arbitration Act),[47] as amended by Law No. 13,129 of 2015,[48] which is inspired in the UNCITRAL Model Law[49] and applies to both domestic and international arbitration proceedings.[50] Although it does not contain specific ethical rules applicable to international arbitration, the Brazilian Arbitration Act set forth some relevant rules regarding the arbitrator’s conduct, including, inter alia, (1) the arbitrator’s duty to act with impartiality, independence, competence and discretion;[51] (2) the arbitrator’s obligation to reveal any fact that might give rise to justifiable doubts as to their impartiality and independence;[52] and the treatment of the arbitrator as public official for the purposes of the criminal law.[53]
The exercise of the legal profession in Brazil is ruled by Law No. 8,906[54] and by the Code of Ethics and Discipline approved by the Brazilian Bar Association (OAB).[55] While Law No. 8,906 sets forth the duties of counsel towards the community, their clients and their colleagues,[56] the OAB Code of Ethics and Discipline rules in more detail the duties and obligations of Brazilian attorneys providing, inter alia, the standard of conduct that shall be adopted in connection with (1) the relation with their clients;[57] (2) the relation with authorities, colleagues and third parties;[58] and (3) professional secrecy.[59]
Brazilian parties usually opt for institutional arbitration (rather than ad hoc tribunals); hence, the ethical rules enacted by major arbitration centres (such as the Centre for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (CAM-CCBC) and the Chamber for Conciliation, Mediation and Arbitration of the State of São Paulo (CIESP-FIESP)[60] become relevant.[61]
Ethical rules’ scope of application
The Brazilian Arbitration Act applies to all international arbitration seated in Brazil.[62] Accordingly, the rules set forth therein regarding arbitrator’s behaviour shall be applicable to international arbitration proceedings with place of arbitration located in Brazil.
Both Law No. 8,906 and OAB Code of Ethics and Discipline apply to Brazilian counsel irrespective of the place in which they are conducting the proceedings.[63] Although the Brazilian Arbitration Act does not contain any restriction regarding party representation (in fact, lawyer representation is not even necessary according to its Article 21), the OAB imposes restrictions concerning the engagement of foreign law firms in issues involving national law and the Provision No. 91/2000 from the Federal Council of the OAB prohibits foreign firms from providing legal advice on Brazilian Law. Hence, a foreign law firm can act as the lead counsel in a Brazil-seated arbitration, as long as they have a Brazilian co-counsel.[64]
The Code of Ethics of the CAM-CCBC applies to arbitrators acting in the arbitration proceedings administered by the CAM-CCBC, and is intended to serve as a guide for the parties and their representatives in relation to the arbitrator or arbitrators serving in each proceeding.[65] On the other side, the rules of the CIESP-FIESP Code of Ethics apply to the arbitrators, parties, their representatives and the authorities of the arbitration centre, without prejudice to any other ethical rules set forth by the law.[66]
Procedures and sanctions in case of a breach of ethical rules
Law No. 8,906 provides that counsel shall be liable for the acts made in the exercise of the legal profession with malice or fault, as well as in cases of reckless litigation; and that they shall be jointly and severally liable with their clients whenever they collude to the prejudice of the opposing party.[67] Any of these scenarios needs to be proven in a proper trial.[68]
Moreover, Law No. 8,906 also details the disciplinary offences,[69] which may result in sanctions such as suspension, exclusion and fines.[70] In addition, Articles 49 and 50 of the OAB Code of Ethics and Discipline establish the competence of the Ethics and Disciplinary Tribunal to guide and advise on professional ethics and to decide on the disciplinary proceedings initiated in case of breach of the rules set forth therein.
Finally, neither the CAM-CCBC Code of Ethics nor the CIESP-FIESP Code of Ethics provides a specific procedure, nor special sanctions in case of breach of their respective rules.
Mexico
Source of ethical rules
International arbitration in Mexico is governed by Articles 1415 to 1480 of the Commercial Code, a regulation that is mostly based on the UNCITRAL Model Law.[71] The Mexican Commercial Code establishes a monistic regulation for both domestic and international arbitration. As in the Argentinian regime, Mexican legislation does not contain specific ethical rules applicable to international arbitration proceedings, but certain rules related to disclosure duties of arbitrators[72] as well as the power of the arbitral tribunals to conduct the arbitration as they consider it appropriate in absence of an agreement between the parties on the rules of procedure.[73]
Moreover, similarly to the Argentinian regime, the regulation of counsel’s conduct in Mexico is controlled by the states, along with the code of ethics of the bar associations, if any. Notably, Mexican law does not provide for mandatory membership to a Bar, nor is there a code of ethics that is legally binding for counsels.[74] At the national level, there are three main bar associations: (1) the Ilustre y Nacional Colegio de Abogados de México (INCAM); (2) the Mexican Bar Association (MBA); and (3) the National Association of Corporate Lawyers (NACL),[75] all of which have their own code of ethics.[76]
Further, the main local arbitration centres have not adopted specific rules or guidelines regarding ethical issues in arbitral proceedings. In this vein, neither the Mediation and Arbitration Centre of the National Chamber of Commerce of Mexico City (CANACO) nor the Mexico Arbitration Centre (CAMEX) provide for rules regarding the conduct that arbitrators or counsels shall observe during an arbitral proceeding.[77]
Ethical rules’ scope of application
Pursuant to Article 1415 of the Mexican Commercial Code, the arbitration regime is applicable to international commercial arbitrations seated in Mexico. Thus, the duties and powers of arbitrators established therein shall apply to international arbitration proceedings with seat in Mexico.
As explained, Mexican law does not provide for mandatory membership to a Bar. However, lawyers may join bar associations and voluntarily submit to their ethical rules, in which case they become binding to them. In this regard, since it is usual for lawyers practicing in Mexico to join bar associations, local legislations related to counsel’s conduct and the bar associations’ codes of ethics usually apply to attorneys acting in their respective jurisdictions.[78]
Procedures and sanctions in case of breach of ethics rules
Neither the Mexican Commercial Code nor the INCAM Code of Ethics or the NCAL Code of Ethics set forth a proceeding in case of breach of their rules or sanctions to the offender. This makes it difficult to sanction counsel’s ethical breaches.[79] Only the MBA Code of Ethics provides that when a violation of their rules has been committed, the Honorary Board may apply the sanctions expressly established in the by-laws of the MBA (i.e., warning; suspension of the rights of an associate for a determined period, etc.).[80]
Peru
Source of ethical rules
Arbitration in Peru is governed by Legislative Decree No. 1,071 (the Peruvian Arbitration Act), issued in 2008 and based on the UNCITRAL Model Law, as amended in 2006.[81] The Peruvian Arbitration Act applies to both domestic and international arbitration proceedings, as well as to arbitration with the state or state entities, and sets forth some relevant provisions regarding the conduct that arbitrators, counsels and parties shall observe during arbitration proceedings.
Indeed, Article 38 of the Peruvian Arbitration Act provides that the parties shall observe the good faith principle in all their acts and interventions during the arbitration, and they shall collaborate with the arbitral tribunal in the development of the proceedings. Moreover, Article 51 determines that all the participants in an arbitration proceeding (including the parties, their representatives and counsels, the arbitrators, the tribunal’s secretary, the arbitral centre and its officials, witnesses and experts) shall keep arbitration proceedings confidential.[82]
Regarding arbitrators’ conduct, Articles 3.2 to 3.4 and 34.1 of the Peruvian Arbitration Act confer broad powers on arbitrators to conduct the arbitration, while Articles 28.1 and 28.2 set their duties to be and keep independent and impartial, as well as to reveal any circumstance likely to give rise to justifiable doubts as to his or her impartiality or independence.
Law No. 30,225 on Public Procurement also approved a Code of Ethics for Arbitration, but only in the context of a contract with the state.[83] The Code of Ethics of State Contracting Arbitration is applicable only to (1) arbitrations administered by the Supervisory Agency of State Contracting; (2) ad-hoc arbitrations in which the State is a party; and (3) in a suppletory manner, to arbitrations administered by arbitral institutions that have approved a Code of Ethics or that, having one, do not establish the infraction committed by an arbitrator or the sanction applicable for it.[84]
The Code of Ethics of State Contracting Arbitration sets forth arbitrators’ rules of conduct and ethical duties,[85] as well as a specific process for application of sanctions,[86] which may range from written warning to permanent disqualification to be elected.[87]
In addition to the rules set forth in the Peruvian Arbitration Act and in the Law No. 30,225, lawyers in Peru are subject to the Code of Ethics of the Peruvian Bar Associations (CAP Code of Ethics),[88] and to the Regulations of the Disciplinary Procedure of the Ethics Control Bodies of the Peruvian Bar Associations.[89] Membership to a local bar association is mandatory in Peru, although foreign lawyers may act in international arbitration proceedings seated in Peru without being members of a local bar association.
Similarly to Brazil, the Peruvian arbitration market is mostly institutionalised (i.e., parties opt for the institutional arbitration rather than the ad hoc one). The three main local arbitration centres are: (1) the Arbitration Centre of the Lima Chamber of Commerce (CCL); (2) the Arbitration Court of the American Chamber of Commerce of Peru (AmCham Peru); and (3) the Centre for Conflict Analysis and Resolution of the Pontificia Universidad Católica del Perú (PUCP); all of which also have their own code of ethics.[90]
Ethical rules’ scope of application
The Peruvian Arbitration Act applies to all arbitration proceedings (national and international) in which the place of arbitration is located in Peru, as well as to any participant of such proceedings.[91] As for the CAP Code of Ethics, it applies only to local counsel acting in an arbitration seated in Peru. Further, foreign counsel may act in international arbitration proceedings with place of arbitration in Peru without restriction.[92]
Last, the codes of ethics enacted by the local arbitration centres apply to all the arbitration proceedings administered by them.
Procedures and sanctions in case of breach of ethical rules
The CAP Code of Ethics and the Regulations of the Disciplinary Procedure of the Ethics Control Bodies of the Peruvian Bar Associations provide for a detailed sanctioning regime that lists the possible sanctions that might be applied, as well as the sanctioning process.[93] Similarly, the Code of Ethics for Arbitration in State Contracts sets forth a detailed process regarding the sanctions for misconduct in arbitration proceedings with the state.[94]
Comparative analysis of Latin American regulations
In light of the regulations examined above, it is possible to draw up the following similarities and differences among them.
First, all arbitration laws are either inspired or based in the UNCITRAL Model Law (in the case of Brazil and Mexico, in its original version; and in the case of Argentina and Peru, with the amendments approved in 2006). However, while the Peruvian Arbitration Act contain rules of conduct that shall be observed by any participant of an international arbitration proceeding; the Argentinian, Brazilian and Mexican legislations do not set forth specific ethical rules applicable to international arbitrations, but certain arbitrators’ duties and powers.
Second, regulations of the legal profession may vary from country to country. While in Argentina and Mexico counsel’s conduct is subject to local legislation and to ethical rules enacted by the bar associations of each state; Brazil and Peru have a single legislation and code of ethics governing the legal profession all along the country. Moreover, while membership to a Bar Association is mandatory in some countries (such as Argentina, Brazil and Peru) in others it is not (such as Mexico). Similarly, in the absence of specific ethical rules governing international arbitration, the application of the ethical rules governing the legal profession to international arbitration may vary from country to country. In some countries (such as Argentina, Mexico and Peru), ethical rules apply only to counsels acting within the territorial jurisdiction of the respective bar association (thus, at least in principle, counsel acting in international arbitration proceedings who are enrolled in the bar association of the place of arbitration are subject to the ethical rules set forth in the code of ethics approved by such bar association).[95] In other countries (such as Brazil), ethical rules may apply to all national counsel irrespective of the place in which they are conducting the proceedings.
Third, despite the variety of sources and regimes, it is possible to identify certain common ethical standards in the region, such as (1) the duty of counsels to act responsibly and diligently in the matters for which he or she were hired;[96] (2) the obligation to respect professional secrecy;[97] (3) the prohibition of knowingly use false evidence or deliberately misrepresenting the facts to the court;[98] and (4) the duty not to act with recklessness or malice.[99]
Fourth, breaches to ethical duties may lead to sanctioning proceedings and the imposition of sanctions that may include warnings, fines and temporary disqualifications or even exclusion from the practice of the legal profession.[100] In general, such proceedings and sanctions fall within the exclusive competence of disciplinary tribunals under the authority of bar associations or state entities (such as the Technical Secretariat of the Ethics’ Council in Peru).[101] Conversely, the arbitral centres do not have disciplinary bodies in their structures.
Fifth, in some countries (such as Argentina, Brazil and Peru) local arbitration centres have adopted their own code of ethics applicable to arbitrators or any participant of arbitration proceedings administered by them, without prejudice of any other legal rules that may apply to them.
The above illustrates on the lack of specific ethical rules established by Latin American countries for international arbitration. In this vein, the analysis made above shows that, in general terms, arbitration laws do not contain ethical rules applicable to international arbitration proceedings. Thus, in principle, the ethical rules generally applicable to the practice of law (which usually do not consider international arbitration standards) will be the applicable, though pursuant to their own provisions which could largely vary in terms of territorial or personal scope of application. This may likely lead to potential controversies on the governing law for ethical conflicts in international arbitration.
The applicable law to ethical conflicts in international arbitration proceedings: the challenge of harmonisation
The first and main question that arises in connection with ethical rules in international arbitration is to define which rules shall apply to each participant of the proceedings. Precisely because of its international nature, it is usual to find arbitrators, parties and counsels from different countries to whom, at least in principle, different ethical rules might apply.[102]
Although most of Latin American countries belong to the civil law tradition, and therefore, their legal and ethical rules are quite similar in substance, the way in which legal profession is regulated in Latin American countries may vary. Ethical rules set forth in local laws and in codes of ethics enacted by the bar associations may apply to lawyers enrolled in the latter regardless the place of practise,[103] while in other countries such rules only apply to those practising in the respective jurisdiction.[104]
Born explains that three main choice-of-law alternatives can be identified: (1) first, every lawyer in an international arbitration, regardless of the place of arbitration, is only subject to his or her own ‘home’ rules of professional conduct; (2) second, a single set of rules of professional conduct apply to all counsel and arbitrators in an international arbitration depending on the seat of arbitration; and (3) third, the application of uniform international rules of professional conduct to all counsel and arbitrators in an international arbitration. All these options are subject to objections that make it impossible to consider any one of them as the ideal solution for all cases.[105] Furthermore, the third option is not even available so far since none uniform international binding rules of professional conduct exist yet.[106]
In our opinion, efforts directed to find consensus on this matter should recall that international arbitration is based and ultimately relies on the consent of the parties. Likewise, ethical solutions for international arbitration cannot disregard the fact that practitioners acting in this arena are most usually educated in different legal systems and traditions, which, in turn, have relevant impact on their education on what should be the ‘acceptable’ or ‘expected’ ethical conduct to adopt by them.[107]
In this context, a reasonable way to bridge gaps could be for the parties (their counsel and adjudicators) to agree on the application of certain set of ethical rules or guidelines (as the IBA Guidelines on Conflicts of Interest and on Party Representation, or the ICCA Guidelines) to the proceedings. That consensus may be reflected in the arbitral agreement, or the terms of reference executed once the proceedings are instituted. The inclusion of provisions on the matter in arbitration rules (which are deemed incorporated by reference to the arbitral agreement), the draft arbitral clauses or the terms of reference’s templates could also help the purpose of (1) ensuring integrity and fairness of the proceedings, (2) balancing the playing field for all participants and (3) standardising the ethical rules applicable to international arbitration.[108]
As for the legislative solutions, a possible harmonisation process encouraged by neutral international bodies should be carried out with extreme prudence and limit the scope of the task to a set of broadly and generally accepted rules of conduct. Further, such harmonisation process should avoid the temptation of imposing rules arising out of certain legal tradition but alien to others and that have not yet reached the status of generally accepted rule of conduct in this field.
In respect of the application of sanctions to participants who breach ethical rules of conduct in international arbitration, a possible solution to the convergence of multiple jurisdictions and competent bodies, may result from recognising disciplinary power to arbitral tribunals. International arbitration laws enacted by Latin American countries usually provide the arbitral tribunals with the power to conduct the proceedings as they consider it appropriate in the absence of agreement of the parties. As is the case with judges and courts, that power may reasonably include the arbitral tribunal’s power (and duty) to ensure the integrity and fairness of proceedings under its control through the exercise of disciplinary powers over the parties, their counsel and other participants. Needless to say, the explicit inclusion of the arbitral tribunals’ disciplinary powers in arbitral agreements or the applicable law agreed upon by the parties would avoid the objections that offenders may likely oppose to those powers in absence of explicit contractual or legal provisions granting them.[109]
Conclusion
The lack of a uniform set of mandatory ethical rules governing the conduct of arbitrators, parties and counsels in international arbitration proceedings has brought a large debate for several years regarding which ethical rules shall apply to this kind of procedures. Latin America is not an exception to this. On the contrary, the increasing development of international arbitration in the region has led to a growing number of questions on ethical issues.
Even though ethical rules and guidelines developed at the international level (such as the IBA Guidelines on Conflicts of Interest and on Party Representation and the ICCA Guidelines) are not intended to be mandatory, they are of great help in this scenario, as they have been designed to suit the peculiarities of international arbitration proceedings and are widely respected and recognised by arbitration practitioners.
Ethical rules enacted by local arbitration centres may also play a useful role to the same purpose, since, by agreeing to submit the dispute to arbitration administered by those centres, the parties should also be considered to have agreed to the application of the rules of conduct adopted by them.
Without prejudice to the above, given that consent is the cornerstone of international arbitration, the parties (and their counsel) may agree at the outset of the arbitration on the rules of conduct that will apply to the proceedings and waive (to the extent permitted by the applicable law) the right to claim the application of other ethical rules that may be applicable in absence of that agreement.
Specific provisions on ethical behaviour in international arbitration laws would also assist to the purpose of harmonising the ethical playing field. Those provisions may recognise explicit disciplinary powers to the arbitral tribunals over the participants in the proceedings. An explicit recognition of disciplinary powers to arbitral tribunals (either by law or by the participants to the arbitral proceedings’ consent[110]) would help to overcome possible controversies resulting from the recognition of implicit powers of that kind based on the arbitral tribunals’ power to conduct the proceeding and, therefore, to ensure its integrity and fairness.
Footnotes
[1] María Inés Corrá is a partner, Santiago Peña is a senior associate and María Lourdes Garay is a semi-senior associate at Bomchil.
[2] Regarding international commercial arbitration, publicly available statistics from the ICC International Court of Arbitration (ICC Court) reveal that the number of Latin American parties involved in international arbitrations has been increasing year after year, having reached approximately 15 per cent of all parties in 2020 (see ICC Court Dispute Resolution Statistics, available at https://library.iccwbo.org/dr-statisticalreports.htm). With respect to international investment arbitration, the International Centre for Settlement of Investment Disputes (ICSID) statistics shows a similar growth. In fact, although the number of cases in which a Latin American state is a party has remained constant between 2011 and 2021, the number of Latin American arbitrators, conciliators and ad hoc committee members has increased significantly, from a total of 138 in 2011 to 409 in 2021 (see ICSID Caseload – Statistics, available at https://icsid.worldbank.org/resources/publications/icsid-caseload-statistics). The remarkable growth of international arbitration in Latin America is also reflected in the creation and development of local arbitration centres, as well as the ratification of international instruments related to international arbitration proceedings and the adoption of arbitration laws based on the UNCITRAL Model Law, all of which has favoured the development of arbitration in the region (see Guido S Tawil, ‘Strengthening International Arbitration’s Presence in the Americas’, in The Arbitration Review of The Americas 2010, Global Arbitration Review (available at www.globalarbitrationreview.com); Diego P Fernández Arroyo, ‘La Evolución del Arbitraje en América Latina: De la supuesta hostilidad a la evidente aceptación’, in Arbitraje Comercial Internacional. Reconocimiento y Ejecución de Sentencias y Laudos Arbitrajes Extranjeros, Organization of American States, Ser. D, XIX.15, ps. 359/360; Eduardo Silva Romero, ‘América Latina como sede de arbitrajes comerciales internacionales. La experiencia de la Corte Internacional de Arbitraje de la CCI’, DeCITA, No. 2, 2004, p. 217 et seq.). A detailed status of the development of the arbitration in the region can be found at the ‘2020 Report of Arbitration in Latin America’, developed by the Latin American Conference (available at http://www.clarbitraje.com/v2/wp-content/uploads/2020/12/Informe-CLA.pdf).
[3] See Gary B Born, International Commercial Arbitration, Kluwer Law International, 2021, 3rd ed., ps. 3083/3084 et seq.; Nigel Blackaby. et al., Redfern and Hunter on International Arbitration, Oxford University Press, 2015, 6th ed., § 3221–31; Raymond Doak Bishop, ‘Advocacy and Ethics in International Arbitration: Ethics in International Arbitration’, in Albert Jan Van den Berg (ed), Arbitration Advocacy in Changing Times, ICCA Congress Series, Kluwer Law International, 2011, vol. 15, ps. 383/385; Peter Halprin and Stephen Wah, Ethics in International Arbitration, Journal of Dispute Resolution, 2018, University of Missouri School of Law, p. 87.
[4] Patrick Taylor, Shreya Aren, et al., ‘Harmonising Cultural Differences in International Arbitration: The Role of Parties’ Reasonable Expectations and Lawyer’s Ethical Rules’, in Axel Calissendorff and Patrik Schöldström (eds), Stockholm Arbitration Yearbook 2020, Vol. 2, Kluwer Law International, 2020, p 45.
[5] Catherine A Rogers, ‘Fit and Function in Legal Ethics: Developing A Code of Conduct for International Arbitration, Michigan Journal of International Law, Vol. 23, 2002, p. 342.
[6] Doak Bishop, ‘Ethics in International Arbitration’, in Arbitration Advocacy in Changing Times, ICCA Congress Series, 2011, No. 15, p. 383.
[7] Catherine A Rogers, ‘Guerrilla Tactics and Ethical Regulation’, in Günther J Horvath and Stephan Wilske (eds), Guerrilla Tactics in International Arbitration, International Arbitration Law Library, Vol. 28, 2013, Kluwer Law International, p. 318.
[8] In this vein, in 1956 the International Bar Association (IBA) released its International Code of Ethics and in 1977 the Council of Bars and Law Societies of the European Community issued the Declaration of Perugia on the Principles of Professional Conduct. Also, in 1977, a joint committee of the American Bar Association (ABA) and the American Arbitration Association (AAA) adopted the ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes and a decade after, in 1987, the IBA proposed the Rules of Ethics for International Arbitrators. These efforts continued to materialise in the form of revisions of some of the above-mentioned documents (i.e., the IBA International Code of Ethics was revised in 1988; available at https://www.ibanet.org/MediaHandler?id=DAD036E7-AF03-4BFC-806B-6A5CA4A0775A) or even in new instruments, such as the Code of Conduct released by the Council of Bars and Law Societies of the European Community in 1988 (amended in 2006 and available at https://www.eesc.europa.eu/sites/default/files/resources/docs/072-private-act.pdf) and the IBA General Principles of the Legal Profession issued in 2006 (available at https://www.ibanet.org/MediaHandler?id=e067863f-8f42-41d8-9f48-d813f25f793c).
[9] See Introduction of the IBA Guidelines on Conflicts of Interest in International Arbitration (available at https://www.ibanet.org/resources).
[10] Matthias Scherer, ‘The IBA Guidelines on Conflicts of Interest in International Arbitration: The first five years 2004–2009’, Dispute Resolution International, Vol. 4, No. 1, May 2010, p. 5. The IBA Guidelines on Conflict of Interest (2014 revision) are available at https://www.ibanet.org/resources.
[11] See Preamble of the IBA Guidelines on Party Representation in International Arbitration, available at https://www.ibanet.org/resources.
[12] See Peter Halprin, Stephen Wah, Ethics in International Arbitration, Journal of Dispute Resolution, 2018, p. 88; Patrick Taylor, Shreya Aren, et al., ‘Harmonising Cultural Differences in International Arbitration: The Role of Parties’ Reasonable Expectations and Counsel’s Ethical Rules’, in Axel Calissendorff and Patrik Schöldström (eds), Stockholm Arbitration Yearbook 2020, Vol. 2, Kluwer Law International, 2020, p. 52; Andrii Zharikov, ‘Conflicts and Ethics in International Arbitration’, in Stavros Brekoulakis (ed), Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, Chartered Institute of Arbitrators (CIArb); Sweet & Maxwell, 2019, Vol. 85, Issue 1, p. 41.
[13] The CEA Good Arbitral Practices Code (2019) is available at: codigo_de_buenas_practicas_arbitrales_del_club_espanol_del_arbitraje.pdf (garrigues.com).
[14] The ICCA Guidelines were developed by a task force of experts in the practice of international arbitration chaired by Abby Cohen Smutny and Guido S Tawil, in order to be used in the specific context of international arbitration as guiding principles of civility (see Introduction of the ICCA Guidelines, available at https://www.arbitration-icca.org/icca-reports-no-9-guidelines-standards-practice-international-arbitration).
[15] See Introduction of the ICCA Guidelines.
[16] See, for instance: Centro Iberamericano de Arbitraje (CIAR), Code of Ethics (http://centroiberoamericanodearbitraje.org/es/codigo-de-etica-de-ciar/); Centro de Conciliación y Arbitraje de Panamá (CeCAP), Code of Ethics for Arbitrators (available at 4-CÓDIGO-DE-ÉTICA-ÁRBITROS.pdf (cecap.com.pa); Centro de Arbitraje de la Cámara de Comercio de Lima, Code of Ethics (available at código de ética.pdf (camaralima.org.pe); Centro de Arbitraje y Mediación del Paraguay, Code of Ethics for Arbitrators and Mediators (https://www.camparaguay.com/phocadownloadpap/userupload/Codigo%20de%20Etica.pdf); Centro de Mediación y Arbitraje Comercial de la Cámara Argentina de Comercio y Servicios (CEMARC), Code of Ethics (available at https://www.cac.com.ar/data/documentos/6_codigo%20de%20etica%20.pdf); among others.
[17] See María Inés Corrá, ‘Arbitrability of Substantive Disputes’, in Fabricio Fortese (ed), Arbitration in Argentina, Kluwer Law International, 2020, p. 41.
[18] See Agustín Gordillo, Tratado de derecho administrativo y obras selectas, 2014, 14th ed., Fundación de Derecho Administrativo, t. 2, pp. 222–223; Santiago Legarre, ‘Poder de policía (historia, jurisprudencia, la doctrina)’, Thomson Reuters Online, AR/DOC/8201/2001.
[19] The NCCCP, enacted through Law No. 17,454 of 19 September 1967 was amended, inter alia, by Law No. 22,434 of 16 March 1981 and Law No. 25,488 of 22 November 2001.
[20] The NCCC was enacted by Law No. 26,994 of 1 October 2014 and entered into force on 1 August 2015.
[21] See María Inés Corrá, ‘Arbitrability of Substantive Disputes’, in in Fabricio Fortese (ed), Arbitration in Argentina, Kluwer Law International, 2020, p. 41; Alejandro M Garro, ‘The Legal Framework of Arbitration in Argentina’, in Fabricio Fortese (ed), Arbitration in Argentina, Kluwer Law International, 2020, p. 3.
[22] See Alejandro M Garro, ‘The Legal Framework of Arbitration in Argentina’, in Fabricio Fortese (ed), Arbitration in Argentina, Kluwer Law International, 2020, pp. 7–8.
[23] The ICAL was enacted by Law No. 27.449 of 4 July 2018.
[24] See Alejandro M Garro, ‘The Legal Framework of Arbitration in Argentina’, in Fabricio Fortese (ed), Arbitration in Argentina, Kluwer Law International, 2020, pp. 3–4.
[25] Article 27 of the ICAL provides that the arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence as soon as he or she is approached in connection with his possible appointment; and that from the time of his appointment and throughout the arbitral proceedings, he or she shall disclose any such circumstances to the parties without delay.
[26] See Article 64 of the ICAL.
[27] See Article 1658(c) of the NCCC.
[28] The National Law No. 23,187 was enacted on 5 June 1985, when the City of Buenos Aires was still under the Federal State’s jurisdiction. After the enactment of the 1994 Argentine Constitution, the City of Buenos Aires became an autonomous state, although the resolution of private matters has continued to be subject to the jurisdiction of the national courts seated in Buenos Aires.
[29] The CPACF Code of Ethics was approved on 31 March 1987 (available at https://new.cpacf.org.ar/noticia/5142/codigo-de-etica).
[30] See Article 6(e) of the Law No. 23,187.
[31] See Article 19, Paras. (a) and (i) and Article 21 of the CPACF Code of Ethics.
[32] See Article 6(f) of the Law No. 23,187 and Article 10(h) of the CPACF Code of Ethics.
[33] See Article 22(d) of the CPACF Code of Ethics.
[34] See Article 22(e) of the CPACF Code of Ethics. The Provinces adopt similar provisions to those of the City of Buenos Aires.
[35] The CEMARC Code of Ethics is available at https://www.cac.com.ar/data/documentos/6_codigo%20de%20etica%20.pdf.
[36] See Article 6 of the CEMARC Code of Ethics.
[37] See Article 18 of the CEMARC Code of Ethics.
[38] See Article 1 of Law No. 23,187.
[39] See Articles 1, 2 and 4 of Law No. 23,187.
[40] See Article 1 of the CPACF Code of Ethics, which establishes the subjective and objective scope of application of that law (‘Scope of application. The provisions of this Code of Ethics shall apply to all members of this Bar Association in the practice of the legal profession in the Autonomous City of Buenos Aires and/or before Federal Courts . . . ’).
[41] See footnote 17.
[42] Pursuant to Article 41 of Law No. 23,187, the CPACF has approved Procedural Rules for its Disciplinary Tribunal (see CPACF Disciplinary Tribunal Procedural Rules, available at https://new.cpacf.org.ar/noticia/5143/reglamento-de-procedimiento).
[43] See Federal Contentious Administrative Court of Appeal, Chamber III, In re R.A.E. y otro v. Colegio Público de Abogados de la Capital Federal, ruling dated 24 May 2005 (Thomson Reuters Online, AR/JUR/4486/2005); id., Chamber I, In re Hernández Olmos, Lisandro Ezequiel y otro v. Colegio Público de Abogados de la Capital Federal, ruling dated 2 November 2021 (Thomson Reuters Online, AR/JUR/171692/2021). Appeals against the disciplinary tribunals’ decisions are usually heard by the contentious administrative courts (see Article 47 of Lay No. 23,187; Article 74 of Law No. 5,177 of the Buenos Aires Province, among others).
[44] See Article 43 of Law No. 23,187 and Articles 34, Subsection 5(d), 35 and 37 of the NCCCP.
[45] Further, membership to bar associations is mandatory to be allowed to practice the law in the respective jurisdiction. See Article 2(b) of Law No. 23,187; Article 1, Subsection 2 of Law No. 5,711 of he Buenos Aires Province, among others. Pursuant to Article 44 of the Law No. 23,187, counsel may be sanctioned, inter alia, in case of (1) frequent delay or negligence, or manifest ineptitude or serious omissions in the performance of their professional duties; and (2) failure to comply with the rules set forth in the CPACF Code of Ethics. Article 45 of Law No. 23,187 set forth a wide range of sanctions in case of disciplinary offences, which vary between calls for attention and warnings to fines and temporary disqualifications or even exclusion from the practice of the legal profession.
[46] Notably, most of the arbitral centres that have adopted codes of ethics do not set forth a specific procedure in case of breach of their respective ethical rules nor provide specific sanction for such breach (in fact, only the Arbitration Rules of the Arbitral Tribunal of the Buenos Aires Stock Exchange – which does not have a code of ethics – provides for the power of arbitrators to sanction procedural misconduct; see Article 73 of the Arbitration Rules of the Arbitral Tribunal of the Buenos Aires Stock Exchange, available at https://www.labolsa.com.ar/sitio/descargas/Reglamento-Tribunal-BCBA-a-partir-del-1-12-2020.pdf). In absence of a specific disciplinary body belonging to those arbitral centres, breaches of ethical rules by counsel acting in those proceedings should in principle only be subject to the respective bar association disciplinary tribunal.
[47] The Brazilian Arbitration Act was enacted on 23 September 1996.
[48] Brazilian Law No. 13,129 was enacted on 26 May 2015 and it was intended to consolidate the application of arbitration law at the time, which was predominantly shaped by case law. Among their most relevant modifications to the Brazilian Arbitration Act, it is worth mentioning the express authorisation of arbitration involving the state and state-owned entities (see Anna-Katharina Scheffer da Silveira, Fábio Murta Rocha Cavalcante, et al., ‘Arbitration in Brazil: An Overview’, in Jörg Risse, Guenter Pickrahn, et al. (eds), SchiedsVZ. German Arbitration Journal, Kluwer Law International, 2021, Vol. 19, Issue 2, p. 88).
[49] As explained by Brazilian scholars, according to its Reporting Commission, the Brazilian Arbitration Act is inspired in the UNCITRAL Model Law, along with the 1988 Spanish Arbitration Law, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NY Convention) and the 1975 Inter-American Convention on International Commercial Arbitration (1975 Inter-American Convention). See Mauricio Gomm Santos, ‘Arbitration in Brazil’, Journal of International Arbitration, Kluwer Law International, 2004, Vol. 21, Issue 6, pp. 459–460; and Fernando Eduardo Serec and Guilherme Carneiro Monteiro Nitschke, ‘Brazil’, in Delos Guide to Arbitration Places (GAP), 2022, point 1.1 (available at https://delosdr.org/wp-content/uploads/2018/06/Delos-GAP-2nd-edn-Brazil.pdf). Currently, the Brazilian House of Representatives is considering the bill No. 3.293/2021 with amendments to the Brazilian Arbitration Law that depart from the global arbitral rules and practices. The bill, which exacerbates the arbitrators’ duties and deepens the publicity of the arbitration proceedings, is being firmly resisted by the arbitral community for jeopardising the core principles of the practice, including the parties’ freedom to choose arbitrators and their right to confidentiality in settling their disputes (see https://www.oabpr.org.br/comissao-de-arbitragem-nota-tecnica-sobre-o-projeto-de-lei-32932021/).
[50] See Anna-Katharina Scheffer da Silveira, Fábio Murta Rocha Cavalcante, et al., ‘Arbitration in Brazil: An Overview’, in Jörg Risse, Guenter Pickrahn, et al. (eds), SchiedsVZ. German Arbitration Journal, Kluwer Law International, 2021, Vol. 19, Issue 2, pp. 86–87; Mauricio Gomm Santos, ‘Arbitration in Brazil’, Journal of International Arbitration, Kluwer Law International, 2004, Vol. 21, Issue 6, pp. 459–460.
[51] See Brazilian Arbitration Act, Article 13(6).
[52] See Brazilian Arbitration Act, Article 14(1).
[53] See Brazilian Arbitration Act, Article 17.
[54] The Law 8,906 was enacted on 4 July 1994.
[55] The OAB Code of Ethics and Discipline was approved by Resolution 02/2015 on 4 November 2015 (available at https://www.oab.org.br/publicacoes/AbrirPDF?LivroId=0000004085).
[56] See Article 31 of Law No. 8,906.
[57] See Articles 9 to 26 of the OAB Code of Ethics and Discipline.
[58] See Articles 27 to 29 of the OAB Code of Ethics and Discipline.
[59] See Articles 35 to 38 of the OAB Code of Ethics and Discipline.
[60] See Anna-Katharina Scheffer da Silveira, Fábio Murta Rocha Cavalcante, et al., ‘Arbitration in Brazil: An Overview’, in Jörg Risse, Guenter Pickrahn, et al. (eds), SchiedsVZ. German Arbitration Journal, Kluwer Law International, 2021, Vol. 19, Issue 2, p. 86.
[61] The CAM-CCBC Code of Ethics is available at https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/en/arbitration/code-of-ethics/ and the CIESP-FIESP Code of Ethics is available at http://www.camaradearbitragemsp.com.br/es/res/docs/Reglamento_de_Arbitraje_Completo.pdf.
[62] See Anna-Katharina Scheffer da Silveira, Fábio Murta Rocha Cavalcante, et al., ‘Arbitration in Brazil: An Overview’, in Jörg Risse, Guenter Pickrahn, et al. (eds), SchiedsVZ. German Arbitration Journal, Kluwer Law International, 2021, Vol. 19, Issue 2, p. 88; Till Alexander Backsmann, ‘Legal Framework for International Arbitration’, in Till Alexander Backsmann, Mateus Aimoré Carreteiro, et al., International Arbitration in Brazil: An Introductory Practitioner’s Guide, Kluwer Law International, 2016.
[63] See Vamilson Costa and Antonio Tavares Paes Jr, ‘Brazil’, in ICLG Guide to International Arbitration, point 6.3 (available at https://iclg.com/practice-areas/international-arbitration-laws-and-regulations/brazil).
[64] See Fernando Eduardo Serec and Guilherme Carneiro Monteiro Nitschke, ‘Brazil’, in Delos Guide to Arbitration Places (GAP), 2022, point 1.1 (available at https://delosdr.org/wp-content/uploads/2018/06/Delos-GAP-2nd-edn-Brazil.pdf); and Article 1 of Provision No. 91/2000 of the OAB.
[65] See Introduction of the CAM-CCBC Code of Ethics.
[66] See Introduction of the CIESP-FIESP Code of Ethics.
[67] See Article 32 of Law No. 8,906.
[68] See Articles 68–77 of Law No. 8,906.
[69] See Article 34 of Law No. 8,906.
[70] See Article 35 of Law No. 8,906. Articles 36 to 40 set forth the cases in which each of the sanctions therein foreseen are applicable, as well as the circumstances that may be considered to graduate the sanction.
[71] See Julio César Treviño Azcué, ‘The New Mexican Legislation on Commercial Arbitration’, Journal of International Arbitration, Kluwer Law International, 1994, Vol. 11, Issue 4, p. 5; Reynaldo Urtiaga, ‘World View: Mexico as an arbitration seat’, The Resolver, Chartered Institute of Arbitrators (CIArb), Kluwer Law International, 2021, Vol. 2021, Issue 1, p. 28.
[72] See Article 1428 of the Mexican Commercial Code.
[73] See Article 1435 of the Mexican Commercial Code.
[74] See Víctor M Ruiz Barbosa and Andrea Orta González Sicilia, ‘Commercial Arbitration: Mexico’, in Commercial Arbitration, Global Arbitration Review, point 49 (available at https://globalarbitrationreview.com/insight/know-how/commercial-arbitration/report/mexico); Óscar Cruz Barney, ‘La Colegiación como garantía de independencia de la profesión jurídica: la colegiación obligatoria de la abogacía en México’, Revista Derecho Constitucional No. 172, Instituto de Investigaciones Jurídicas UNAM, Julio 2012, pp. 84–85 (available at https://www.scielo.org.mx/pdf/cconst/n28/n28a3.pdf); Jorge A Torres González, ‘Abogados sin Ley, la Abogacía y el Derecho Fundamental a la Defensa’, Revista Perspectiva Jurídica, No. 10, 2018, pp. 216–219 (available at http://www.edkpublicaciones.com/up/pdf/perspectiva_juridica_10.pdf).
[75] See Óscar Cruz Barney, ‘La Colegiación como garantía de independencia de la profesión jurídica: la colegiación obligatoria de la abogacía en México’, Revista Derecho Constitucional No. 172, Instituto de Investigaciones Jurídicas UNAM, Julio 2012, p. 82.
[76] The INCAM Code of Ethics is available at http://www.incam.org/estatutos/CODIGO-DE-ETICA.pdf; the MBA Code of Ethics is available at http://www.bma.org.mx/assets/codigo-de-etica---xii-2016-.pdf; and the NACL Code of Ethics is available at https://anade.org.mx/codigo-de-etica-anade/.
[77] Information about CANACO and CAMEX is available at https://arbitrajecanaco.com.mx/ and https://camex.com.mx/, respectively.
[78] The NACL Code of Ethics applies only to the attorneys members of the Bar Association (see Article 1 of the NACL Code of Ethics).
[79] See Óscar Cruz Barney, ‘Colegiación y certificación obligatoria de los abogados. Una defensa’, in Derecho en Acción, Centro de Investigación y Docencia, available at https://derechoenaccion.cide.edu/tag/ley-general-de-abogacia/.
[80] See Article 36 of the MBA Code of Ethics and Article 43 of the MBA by-laws.
[81] See Fernando Cantuarias Salaverry, in Carlos Alberto Soto Coaguila and Alfredo Bullard González (coord.), Comentarios a la Ley Peruana de Arbitraje, Instituto Peruano de Arbitraje Comercial y Arbitraje de Inversiones, 2011, Vol. 1, pp. 52–53; Carlos Alberto Soto Coaguila, ‘El convenio arbitral en la ley peruana de arbitraje de 2008’, in Carlos Alberto Soto Coaguila (dir.), Tratado de Derecho Arbitral, Pontificia Universidad Javeriana, Facultad de Ciencias Jurídicas, Grupo Editorial Ibañez, Instituto Peruano de Arbitraje, 2011, p. 618.
[82] Presidential Act No. 020-2020 of late February 2020 introduced an exception to this rule, setting forth that when the state is a party to the arbitration, the award and the arbitration proceedings shall be public.
[83] See Article 3 (which regulates the law’s scope of application) and Article 45.26 (which approves the Code of Ethics for Arbitration) of Law No. 30,225 (available at https://www.gob.pe/institucion/mef/normas-legales/266672-082-2019-ef).
[84] See Article 1 of the Code of Ethics of State Contracting Arbitration (https://portal.osce.gob.pe/arbitraje/sites/default/files/C%C3%B3digo%20de%20%C3%89tica.pdf).
[85] See Articles 3 and 4 of the Code of Ethics of State Contracting Arbitration (as above).
[86] See Articles 19 to 24 of the Code of Ethics of State Contracting Arbitration (as above).
[87] See Article 22 of the Code of Ethics of State Contracting Arbitration (as above).
[88] See Article 1 of the Resolution of the Chair of the Board of Deans of the Peruvian Bar Associations No. 001-2012-JDCAP-P of 14 April 2012. The CAP Code of Ethics is available at https://cdn.www.gob.pe/uploads/document/file/433747/CO%CC%81DIGO_DE_E%CC%81TICA_DEL_ABOGADO.PDF.
[89] See Article 1 of the Resolution of the Chair of the Board of Deans of the Peruvian Bar Associations No. 002-2012-JDCAP-P of 14 April 2012; and Aleixs Luján, ‘¿Es realmente obligatorio el Código de Ética del Abogado en el Perú?’, Portal Jurídico Enfoque-Derecho, 15 March 2008, available at https://www.enfoquederecho.com/2018/03/15/es-realmente-obligatorio-el-codigo-de-etica-del-abogado-en-el-peru/.
[90] The CCL Code of Ethics is available at https://apps.camaralima.org.pe/repositorioaps/0/0/par/reglamento/reglamento%20y%20estatuto%20de%20arbitraje..pdf; the AmCham Peru Code of Ethics is available at https://amcham.org.pe/wp-content/uploads/2021/05/Reglamento-2021.pdf; and the PUCP Code of Ethics is available at https://cdn01.pucp.education/carc/wp-content/uploads/2019/04/22214038/carc-per-4-12-rev-1-codigo-de-etica.pdf.
[91] See Article 1 of the Peruvian Arbitration Act. See also Fernando Cantuarias Salaverry, in Carlos Alberto Soto Coaguila and Alfredo Bullard González (coord.), Comentarios a la Ley Peruana de Arbitraje, Instituto Peruano de Arbitraje Comercial y Arbitraje de Inversiones, 2011, Vol. 1, pp. 1–2.
[92] See Alberto José Montezuma Chirinos and Mario Juan Carlos Vázquez Rueda, ‘Peru’, in ICLG Guide to International Arbitration, point 6.3 (available at https://iclg.com/practice-areas/international-arbitration-laws-and-regulations/peru).
[93] See Articles 92 to 101 (regarding the sanctioning process) and 102 to 111 (regarding the sanctioning regime) of the CAP Code of Ethics, and Articles 9 to 31 (regarding the sanctioning process); as well as Articles 32 to 40 (regarding the sanctioning regime) of the Regulations of the Disciplinary Procedure of the Ethics Control Bodies of the Peruvian Bar Associations. Pursuant to these rules, disciplinary proceedings shall be conducted and resolved by the Ethics Council, whose decision may be appealed to the Honor Tribunal (a non-judicial tribunal integrated by former deans of the Peruvian Bar Associations or attorneys with a well-known reputation). Decisions adopted by the Honor Tribunal may, in turn, be appealed to the judicial civil courts. According to Article 102 of the CAP Code of Ethics and Article 32 of the Regulations of the Disciplinary Procedure of the Ethics Control Bodies of the Peruvian Bar Associations, sanctions for disciplinary offences may vary between warning, fines and suspension or even permanent disqualification for exercising the legal profession.
[94] See Articles 19 to 24 of the Code of Ethics for Arbitration in State Contracts. Pursuant to Articles 45.28 to 45.30 of Law 30,225, disciplinary offences may result in warning, suspension or permanent disqualification of the arbitrator and the disciplinary proceeding shall be conducted and resolved by the Ethic Council, which shall be integrated by three independent members with well-known ethic and professional reputation chosen by the President of the Council of Ministers, the Ministry of Economy and Finance and the Ministry of Justice and Human Rights, respectively.
[95] However, in Argentina, foreign counsel would not be covered by such rules while in Peru foreign counsel acting in international arbitration proceedings seated in Peru would be (see above II.A.(ii) and D.(ii).
[96] See Articles 19 and 22 of the CPACF Code of Ethics; Article 13 of the OAB Code of Ethics; Article 3.1.2 of the INCAM Code of Ethics; and Article 12 of the CAP Code of Ethics.
[97] See Article 10, Subsection h) of the CPACF Code of Ethics; Articles 25 to 27 of the OAB Code of Ethics; Article 2.3 of the INCAM Code of Ethics; and Articles 30 to 37 of the CAP Code of Ethics.
[98] See Articles 22(d) and 24 of the CPACF Code of Ethics; Article 6 of the OAB Code of Ethics; Article 4.3.1 of the INCAM Code of Ethics; and Article 64 of the CAP Code of Ethics.
[99] See Article 22(e) of the CPACF Code of Ethics; Article 58 of the OAB Code of Ethics; Article 4.3 of the INCAM Code of Ethics; and Articles 55 and 60 of the CAP Code of Ethics.
[100] See footnotes 45, 70, 92 and 93 above.
[101] See https://www.pj.gob.pe/wps/wcm/connect/CorteSuprema/s_cortes_suprema_home/as_poder_judicial/as_corte_suprema/as_comite_etica/as_secretaria_tecnica/.
[102] See Gary B Born, International Commercial Arbitration, Kluwer Law International, 2021, p. 3107; Catherine Rogers, ‘Guerrilla Tactics and Ethical Regulation’, in Günther J Horvath and Stephan Wilske (eds), Guerrilla Tactics in International Arbitration, International Arbitration Law Library, Vol. 28, Kluwer Law International 2013, pp. 315–316.
[103] For instance, that is the case of Brazil.
[104] For instance, that is the case of Argentina.
[105] See Gary B Born, International Commercial Arbitration, Kluwer Law International, 2021, pp. 3107–3112.
[106] Reference shall be made to the Draft Code of Conduct for Adjudicators in Investor–State Dispute Settlement (ISDS) proposed for review by the ICSID Secretariat and the Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) (see Code of Conduct for Adjudicators in International Investment Disputes | ICSID (worldbank.org). Although with a scope of application limited to adjudicators in investment arbitration, if approved, that body of rules would become a relevant precedent in the way towards the adoption of uniform rules of ethics for international arbitration.
[107] As correctly stated by Born, ‘a lawyer’s “home” ethical rules may require (or forbid) particular conduct which may, at the same time, be forbidden (or required) by other arguably applicable rules of professional conduct’ (Gary B Born, International Commercial Arbitration, Kluwer Law International, 2021, p. 3089). For instance, in common law countries, disclosure of documents relevant for the resolution of the case is the rule, while privilege and confidentiality can only be invoked in those cases ruled by the law. Conversely, under the civil law system – which most Latin American countries belong to – there is not such duty of disclosure neither on the parties nor on the counsel. Each party has the burden to produce the relevant evidence to support their own case and are only allowed to request specific and duly identified documents to the counter-party. Therefore, the expected ethical conduct by parties from both systems may likely not be the same. On the other hand, the right not to be forced to self-incrimination existing in some countries may collide with the general duties of procedural loyalty and act in good faith, which embrace the general duty of telling the truth. This rule has explicitly been foreseen in ICCA Guideline II.C and Guidelines 9 to 11 of the IBA Guidelines on Party Representation (which add the duty of promptly correcting such submission or restraining to rely on testimonies that are not true). A sound solution to such collision would be to restrain the so-called right not to be forced to self-incrimination to those arenas where it has been explicitly set forth under the relevant law; and further to restrict the scope of such right to be able to keep silent on those facts and omissions that could lead to a self-incrimination, but without embracing the right to submit or allege positive assertions that the party knows that are false.
[108] The same agreement may include (to the extent permitted by the applicable law) the parties’ (their counsels and other participants) waiver of the right to claim for the application of domestic regimes that, in absence of such waiver, would also be applicable on the basis the respective nationality or membership to a particular bar association.
[109] It is worth noting the disparity that also exists in Latin America regarding the power of arbitrators to impose sanctions during arbitral proceedings. While in some countries (as Brazil) the law allows arbitrators to sanction bad faith litigation (see Article 27 of the Brazilian Arbitration Law); in other countries (such as Argentina, Chile and Ecuador) the law does not grant arbitrators such a power expressly; and in other countries (such as Peru) the issue is highly controversial, since the former arbitration law expressly provided for the arbitrator’s power to impose sanctions while the current Peruvian Arbitration Act is silent on the matter.
[110] Even if it could be argued that counsel is not a party to the arbitral agreement, his or her voluntary participation in an arbitral proceeding instituted pursuant to an arbitral agreement should reasonably be deemed as a voluntary submission to the disciplinary powers of the tribunal constituted under such agreement.