14 IN CONVERSATION WITH NASSIB ZIADÉ
INTERNATIONAL ARBITRATION 1/3LY
NA SS IB The IBA Guidelines are definitely helpful. Everyone says they’re not binding but we all look at them! However, the current Guidelines weremainly drafted by practitioners, so they reflect the best practices froma practitioner’s point of view; therefore they’remore enabling than restricting. While I agree that disclosure would be a good safeguard, there would still be cases where disclosure wasn’t enough. That’s why I believe institutions should enact guidelines but I’maware that many colleagues disagree withme. ALEC Indeed, that’s quite a controversial view. So why do you think that the institutions need to be the policemen of ethical practices? NA SS IB Someone needs to do it, and it can’t be the practitioners themselves! Systems don’t tend to self-regulate well; andwe’re seeing an increasing number of anomalies and deviations, so I believe that the institutions should step in. They’re verywell-placed to fulfil a regulatory role because they’re neutral, and can involve the practitioners and seek opinions with relative ease. They can also provide guidance and a sense of authority. ALEC But do you think that the institutions would be able to operate in a sufficiently coherent manner? If multiple institutions published their own guidelines or rules on ethics for arbitrators, there would be huge potential for discrepancies. NA SS IB Well, similar institutions could collaborate. And even if every institution formulated its own ethical codes and rules, it would be no different from the current situation; in that almost every institution has its own, yet many drawheavily on the rules of other institutions. There are already lots of similarities, but also, conversely, lots of differences. Of course, institutions concentrating on investment arbitrationsmay require different rules from those focussing on commercial arbitrations, on account of the subject matter. ALEC And howwould you persuade institutions that strongly disagree that they bear responsibility for policing this area?
NA SS IB I can’t persuade them; I can only champion my views... A viable future lies onlywith arbitration institutions that successfully deliver the basic principles of controlling costs, maximising efficiency, achieving genuine diversity, and ensuring transparency, including in the handling of the appointments and challenges of arbitrators. More importantly, sustainability depends on being quick to respond effectively to the legitimacy crisis affecting international arbitration; as well as understanding that the system requiresmore than cosmetic changes when it comes to conflicts of interest. Institutions which enact these principles will thrive over and above others who fail to act. Institutions should begin by enacting internal codes of conduct applicable to their staff and practices, and then enacting external codes of conduct applicable to the arbitrators and counsel appearing before them. Only by doing this will arbitration institutions fulfil their missions and strengthen their legitimacy. The bottom line is that if they don’t do it, theywill not have a viable future. NA SS IF Speaking as a practitioner, I think you’re right. Ultimately, if the institutions don’t fill this void - or if some do and others don’t – practitioners will advise clients to adopt the rules of a centre which takes itself ‘more seriously’. T RE A D ING T HE F INE L INE BE T WEEN T R A NSPA RENC Y A ND C ONF I DEN T I A L I T Y NA SS IB And to go back to what was said earlier, I don’t think the institutions have any choice in reform: those who aren’t convinced todaywill be provenwrong in five or ten years’ time. Practices that have been left unchanged for 25 or 50 years need to be challenged. It’s a different world now. Even in the field of commercial arbitration, I don’t believe confidentiality can, or should, be maintained. I understand the importance of confidentiality, particularly around publishing awards. However, I am
concerned that confidentiality can be used as a subterfuge to hide things; it’s important to knowwho has appointedwhom, and the nature of the relationships that exist among the lawyers, arbitrators and the parties. I think these issues will come under increasing scrutiny in the next fewyears. ALEC There’s a real conflict between the need for transparency and confidentiality; the latter being one of the key attractions of commercial arbitration. It’s a question of where the line is drawn, but a lot of parties would be very unhappy having their names published. NA SS IB The parties notwithstanding, there’s an altogether different problem. My guess is that if the names of counsel, arbitrators and parties were published, there would be some very unpleasant surprises! Andmy concern is that we should be careful to avoid using the word ‘confidential’ to hide things whichmay be unethical. The IBA Guidelines say that a party can’t appoint the same arbitrator more than a specified number of times; but if details are secret, how can you knowwhat’s taking place? ALEC But that problemcould also be dealt with through disclosure obligations contained in ethical codes and rules, as we discussed. Or by establishing a central registry to keep track of parties, counsel and arbitrator appointments. It could be administered by one of the institutions... NA SS IF To add to the complexity, the problem is also different from the perspective of an administrator of a centre, as opposed to parties. Some information - party nomination for example - is visible to the centre but the problem lies inwhether or not the centre canmake use of that information. All these issues are arising because we have newcomers in the field contesting legitimacy. Not everything they say is right, but some of the questions they pose are highly valid and deserve to be addressed. And rather than being always on the defensive, why not move it forward?!?
ALEC Do you think confidentiality poses greater issues at state level than in commercial arbitration?
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