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Copyright (c) 2013 Mississippi College Law Review
Mississippi College Law Review

ARTICLE: "One, No one and One Hundred Thousand 1 " ... Which Ethical Rule to Apply? Conflict of Ethical Rules in International Arbitration


Mississippi College Law Review

32 Miss. C. L. Rev. 283


Nathan M. Crystal* and Francesca Giannoni-Crystal**


I. Introduction

The ABA Ethics 20/20 commission was charged with examining and making recommendations for additions or changes to the ABA Model Rules of Professional Conduct to reflect the impact of technology and globalization on the practice of law. 2 The commission has finished with its work, but it has failed to act on a significant problem that has emerged from the globalization of law practice: determination of the ethical rules that apply in international commercial arbitration ("ICA"). 3

Part II of this paper argues that uncertainty about these rules, coupled with growing instances of unethical conduct in ICA, is a substantial threat to the legitimacy of ICA. We argue that the situation for lawyers engaged in ICA ("ICA Lawyers") is similar to the state of the American legal profession before Watergate, which was characterized by lack of clear guidance to lawyers.

Part III discusses two major ethical challenges facing ICA Lawyers: "double deontology" (i.e., when the same lawyer is bound by two conflicting sets of ethics rules) and "inequality-of-arms" (i.e., when in the same proceeding, lawyers are bound by different ethics rules resulting in one side having an advantage in the arbitration.) This section provides specific examples of divergences in ethics rules illustrating these challenges (witness preparation, communications with clients, and relationship among fellow lawyers).

Part IV begins by summarizing five theoretical ways in which the applicable set of ethics rules could be identified in cross-border transactions. We then consider possible application of these approaches ...
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