Are Cross-Cultural Ethics Standards Possible or Desirable in International Arbitration?

This essay (as a festschrift/melanges en l'honneur de Pierre Tercier, outgoing Chairman of the International Chamber of Commerce International Court of Arbitration and Professor at the University of Fribourg, Switzerland) argues that it is possible and desirable for such bodies as the ICC to promulgate and enforce ethics standards for use in international arbitration. Many international arbitral administrative tribunals (and the non-administrative International Bar Association) have discussed, drafted, and approved ethics standards on such topics as conflicts of interests, disclosures, timely performance, fees, ex parte communication, use of information, competence and jurisdictional issues, truthfulness and candor, due process, impartiality, confidentiality and transparency. This article suggests that the ICC should do so as well if it intends to retain prominence and legitimacy in the field of international commercial justice. Where more or less private processes have significant power in international dispute resolution, they should ensure fairness of process if these processes seek to continue to dominate the field of international dispute resolution (as compared to international litigation which is more or less public). Despite claims that cultural differences in legal systems, judicial and attorney practices, procedural and evidentiary rules, as well as nationally based ethical obligations, might prevent true cross-cultural ethical standards from being agreed to, this essay suggests such standards are possible and desirable. The core issues and contours of some international ethics standards are suggested