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 counsel 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, counsel and parties from different 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 of whether the lack of common ethical rules for international arbitration practitioners may tilt the playing field, thus requiring solutions to level the ground.
This chapter intends to shed some light on this matter by exploring the ethical rules through regional and local lenses.
The chapter addresses (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 in Argentina, Brazil, Mexico and Peru; (3) the applicable law to ethical conflicts in international arbitration proceedings and 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 may lead to complex substantive and procedural issues regarding international arbitration practitioners’ standards of conduct.
Given that ethical codes in many legal systems do not state expressly whether they extend extraterritorially or apply to 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 has been suggested that there is a ‘current, compelling need for the development of a Code of Ethics in International Arbitration’.[6]
As explained by Catherine Rogers,[7] concern about regulation of professional conduct in international arbitration has spawned dozens of efforts to develop international codes of ethics since at least the middle of the past 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 the 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 sought 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 Conflicts of Interest were revised on 23 October 2014[10] and, more recently, in February 2024.[11]
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’.[12]
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.[13]
As for Spanish-speaking institutions, in 2019, the Spanish Arbitration Club (CEA) released the Code of Good Arbitral Practices, as a revision of the former 2005 Code, which was only directed at 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 to enable them to abide by stricter ethical rules.[14]
In 2021, the International Council for Commercial Arbitration (ICCA) published the Guidelines on Standards of Practice in International Arbitration (the ICCA Guidelines).[15] 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 Guidelines apply to the parties and their representatives, counsel, arbitrators, tribunal secretaries, personnel employed by arbitral institutions, fact witnesses, experts (either tribunal-appointed or party-appointed), professionals and all other persons participating in arbitration proceedings in any capacity.[16]
In February 2024, the Code of Conduct for Arbitrators in International Investment Dispute Resolution, prepared by the United Nations Commission on International Trade Law (UNCITRAL) and the International Centre for Settlement of Investment Disputes, was published.[17] The Code is focused on building a set of uniform standards and disclosure requirements for arbitrators and candidates to perform as arbitrators in international investment disputes to consolidate the best practices applicable across treaties and arbitral rules. It also aims to provide ‘a set of ethical standards for adjudicators responsible for resolving international investment disputes’,[18] addressing matters such as independence and impartiality, and the duty to conduct proceedings with integrity, fairness, efficiency and civility.
As regards Latin America, these international guidelines have started to be used as soft law in international arbitration proceedings seated in the region. As such, these guidelines are not mandatory as a law.
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 codes of ethics; while some are directed at arbitrators, mediators and conciliators only, other codes extend their application to all practitioners involved in proceedings administrated by the respective centre.[19] As explained in this section, despite the variety of sources and legislation that may exist, it is possible to find some fundamental ethical rules shared by Latin American countries.
Due to the limitations of this chapter, we examine the current status of the matter in Argentina, Brazil, Mexico and Peru, summarising the source and scope of application of the ethical rules in each, and detailing applicable procedures and sanctions in breaches of ethical duties.
Argentina
Source of ethical rules
Argentina is a federal republic, with both federal and provincial levels of political organisation. While substantive law is enacted by the National Congress and is applicable to the whole nation, procedural rules are promulgated by the provincial legislative branches.[20] Likewise, both federal and provincial policing powers apply to activities performed in their respective jurisdictions (including the practice of the legal profession).[21]
As for 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)[22] 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)[23] entered into force and, since then, the substantive regulation of arbitration agreements has been governed by this Code, the provisions of which are applicable to all jurisdictions.[24] 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).[25]
In 2018, Argentina enacted Law No. 27,449 on International Commercial Arbitration (ICAL),[26] mostly adopting the UNCITRAL Model Law on International Commercial Arbitration, as amended in 2006. Therefore, since 2018, the country has had a dualist regime under which domestic arbitration proceedings are regulated by the NCCC and procedural local codes (for procedural matters), while international commercial arbitration proceedings are exclusively regulated by the ICAL.[27]
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[28] 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.[29] The NCCC contains a similar provision.[30]
As discussed above, each Argentine province has its own law governing the practice of professions, including the legal profession. In turn, local laws governing the legal profession empower the respective bar association to approve the code of ethics applicable to counsel enrolled therein. As a general rule, it is mandatory for legal professionals to be enrolled in the local bar association for them to exercise their profession in the respective local jurisdiction.
The ethical rules for counsel practising in the city of Buenos Aires are set forth in Law No. 23,187[31] and the Code of Ethics of the Buenos Aires Public Bar Association (CPACF).[32]
Among other provisions, Law No. 23,187 and the CPACF Code of Ethics Rules set forth attorneys’ obligations towards the community, clients, colleagues and the judiciary, including the duty:
- to act with loyalty, probity and good faith;[33]
- to take care of clients’ interests;[34]
- to strictly respect professional secrecy;[35]
- not to deliberately use false evidence;[36] and
- not to act recklessly or maliciously.[37]
Further, some local arbitration centres also have their own rules of ethics. The Commercial Arbitration and Mediation Centre (CEMARC) released a code of ethics,[38] which applies to all arbitration proceedings (both national and international) brought before it, and it details, inter alia, the arbitrator’s obligation to be impartial, honest, diligent and respectful,[39] as well as the parties’ duty to act with loyalty and good faith.[40] The code applies to all counsel appearing in a CEMARC case (although it does not establish sanctions for violation of its provisions, nor does it make any distinction based on the counsel’s residence or nationality).
Ethical rules scope of application
Article 2 of the ICAL states that the ICAL applies to all international commercial arbitration seated in Argentina.
Neither 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. The ICAL does not require foreign lawyers to be enrolled in a bar association to act as counsel or arbitrators in international arbitration proceedings seated in Argentina. It is standard practice, and would not affect the validity of proceedings, for foreign lawyers to act as counsel or arbitrators without being registered in a local bar association. Counsel acting in international arbitration seated abroad would not fall within the scope of application of domestic ethical rules nor within the bar association’s disciplinary powers, as the scope of application of both is limited to within the city of Buenos Aires.
Finally, the rules of ethics enacted by local arbitration centres apply to arbitrators and all participants of arbitration proceedings administered by them (depending on the scope of application of those rules in each case).[41]
Procedures and sanctions for breaches of ethical rules
The laws (provincial or national) of the legal profession delegate to the bar associations the disciplinary power to control compliance with the rules of ethics set forth by them.[42] The decision made by 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 this purpose, the CPACF disciplinary tribunal has the power to exercise disciplinary powers over CPACF-enrolled counsel acting in the 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]
Brazil
Source of ethical rules
Arbitration in Brazil is governed by Law No. 9,307 (the Brazilian Arbitration Act),[46] as amended by Law No. 13,129 of 2015,[47] which is inspired by the UNCITRAL Model Law[48] and applies to both domestic and international arbitration proceedings.[49] Although it does not contain specific ethical rules applicable to international arbitration, the Brazilian Arbitration Act sets forth relevant rules on arbitrator conduct, including the arbitrator’s duty to act with impartiality, independence, competence and discretion;[50] the arbitrator’s obligation to reveal any fact that might give rise to justifiable doubts as to their impartiality and independence;[51] and the treatment of arbitrators as public officials for the purposes of criminal law.[52]
The exercise of the legal profession in Brazil is ruled by Laws No. 8,906[53] and No. 14,365[54] and by the Code of Ethics and Discipline approved by the Brazilian Bar Association (OAB).[55] As a general rule, enrolment in the OAB is mandatory for lawyers.[56] While the aforementioned laws set forth the duties of counsel towards the community, clients and colleagues,[57] the OAB Code of Ethics and Discipline provides specific rules on the duties and obligations of Brazilian attorneys, including on the standard of conduct that should be adopted in connection with professional secrecy[58] and in terms of relationships with clients,[59] authorities, colleagues and third parties.[60]
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))[61] become relevant.[62]
Ethical rules scope of application
The Brazilian Arbitration Act applies to all international arbitration seated in Brazil.[63] Accordingly, the Act’s rules on arbitrator behaviour are applicable to international arbitration proceedings seated in Brazil.
Both Laws No. 8,906 and No. 14,365, along with the OAB Code of Ethics and Discipline, apply to Brazilian counsel irrespective of the place in which the proceedings are conducted.[64] Although the Brazilian Arbitration Act does not contain restrictions regarding party representation (in fact, lawyer representation is not even necessary, according to Article 21 of the Act), the OAB imposes restrictions on the engagement of foreign law firms in issues involving national law, and Provision No. 91/2000 of the Federal Council of the OAB prohibits foreign firms from providing legal advice on Brazilian law. Hence, a foreign law firm can act as lead counsel in a Brazil-seated arbitration, as long as they have a Brazilian co-counsel.[65] Notwithstanding this, these laws do not apply to non-Brazilian lawyers or arbitrators acting in international arbitration proceedings seated in Brazil unless they are enrolled in the OAB.
The Code of Ethics of the CAM-CCBC applies to arbitrators acting in arbitration proceedings administered by the CAM-CCBC, and it is intended to serve as a guide for the parties and their representatives in relation to the arbitrator or arbitrators serving in each proceeding.[66] The rules of the CIESP-FIESP Code of Ethics apply to arbitrators, parties, their representatives and arbitration centre authorities without prejudice to any other ethical rules set forth by the law.[67]
Procedures and sanctions for breaches 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.[68] Any of these scenarios needs to be proven in a proper trial.[69]
Moreover, Law No. 8,906 also details the disciplinary offences[70] that may result in sanctions such as suspension, exclusion and fines.[71] 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 breaches of the rules it sets forth.
Finally, neither the CAM-CCBC Code of Ethics nor the CIESP-FIESP Code of Ethics provides a specific procedure or special sanctions for breaches 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.[72] 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 does contain certain rules related to arbitrators’ disclosure duties,[73] as well as details of the power of arbitral tribunals to conduct arbitration as they consider it appropriate in the absence of an agreement between parties on the rules of procedure.[74]
Moreover, the regulation of counsel conduct in Mexico is controlled by the states, along with any codes of ethics of the respective bar associations. Notably, Mexican law does not mandate membership to a bar, nor is there a code of ethics that is legally binding for counsel.[75] At the national level, there are three main bar associations: the Illustrious and National College of Lawyers of Mexico (INCAM); the Mexican Bar Association (MBA); and the National Association of Corporate Lawyers (NACL),[76] all of which have their own code of ethics.[77]
Further, the main local arbitration centres have not adopted specific rules or guidelines regarding ethical issues in arbitral proceedings. Neither the Mediation and Arbitration Centre of the National Chamber of Commerce of Mexico City nor the Mexico Arbitration Centre provides ethical rules on the conduct that arbitrators or counsels shall observe during an arbitral proceeding.[78]
Therefore, foreign lawyers may act as counsel or arbitrator in international arbitration proceedings seated in Mexico without being enrolled in a local bar association. The conduct of foreign lawyers is not subject to local Mexican laws, irrespective of the eventual application of the laws of their own country (if so provided by the latter).
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. Therefore, the duties and powers of arbitrators established therein shall apply to international arbitration proceedings seated in Mexico.
As explained above, Mexican law does not mandate bar membership. However, lawyers may join bar associations and voluntarily submit to their ethical rules, in which case they become binding to them. In this regard, as it is standard for lawyers practising in Mexico to join bar associations, local legislation related to counsel conduct and the bar associations’ codes of ethics usually apply to attorneys acting in their respective jurisdictions.[79]
Procedures and sanctions for breaches of ethics rules
The Mexican Commercial Code, the INCAM Code of Ethics and the NACL Code of Ethics contain no proceeding or sanctions for breaches of their rules. This makes it difficult to sanction ethical breaches by counsel.[80] Only the MBA Code of Ethics provides that when its rules are violated, the honorary board may apply the sanctions expressly established in the MBA’s by-laws (e.g., a warning or suspension of rights for a determined period).[81]
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.[82] 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 relevant provisions on the conduct that arbitrators, counsel and parties must observe during arbitration proceedings.
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 participants in an arbitration proceeding (including the parties, their representatives and counsel, the arbitrators, the tribunal’s secretary, the arbitral centre and its officials, witnesses and experts) shall keep arbitration proceedings confidential.[83]
Regarding arbitrator 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 state that their duties must remain independent and impartial, and that they must reveal any circumstance likely to give rise to justifiable doubts as to their impartiality or independence.
Law No. 30,225 on public procurement also approved an arbitration code of ethics but only in the context of contracts with the state.[84] The Code of Ethics of State Contracting Arbitration is applicable only to:
- arbitrations administered by the Supervisory Agency of State Contracting;
- ad hoc arbitrations in which the state is a party; and
- in a suppletory manner, arbitrations administered by arbitral institutions that have approved a code of ethics or whose code of ethics does not establish infractions or sanctions.[85]
The Code sets forth arbitrators’ rules of conduct and ethical duties,[86] as well as a specific process for application of sanctions,[87] which may range from written warning to permanent disqualification from election.[88] The Code applies to any counsel acting in arbitration of disputes regarding contracts with the state (without distinguishing between local and foreign counsel).
In addition to the rules set forth in the Peruvian Arbitration Act and in Law No. 30,225, lawyers in Peru are subject to the Code of Ethics of the Peruvian Bar Associations (the CAP Code of Ethics)[89] and the Regulations of the Disciplinary Procedure of the Ethics Control Bodies of the Peruvian Bar Associations.[90] Membership of 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.[91]
Similarly to Brazil, the Peruvian arbitration market is mostly institutionalised (i.e., parties opt for institutional rather than ad hoc arbitration). The three main local arbitration centres are: the Arbitration Centre of the Lima Chamber of Commerce (CCL); the Arbitration Court of the American Chamber of Commerce of Peru (AmCham Peru); and the Centre for Conflict Analysis and Resolution of the Pontifical Catholic University of Peru (PUCP), all of which also have their own code of ethics.[92]
Ethical rules scope of application
The Peruvian Arbitration Act applies to all arbitration proceedings (national and international) in which the place of arbitration is Peru, as well as to any participant of these proceedings.[93] The CAP Code of Ethics applies only to local counsel acting in an arbitration seated in Peru. Further, foreign counsel may act in international arbitration proceedings in Peru without restriction.[94]
Last, the codes of ethics enacted by the local arbitration centres apply to all arbitration proceedings administered by them.
Procedures and sanctions for breaches 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 applicable sanctions and associated processes.[95] 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.[96]
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 by, or based on, the UNCITRAL Model Law (the original Model Law in Brazil and Mexico, and with the 2006 amendments in Argentina and Peru). However, while the Peruvian Arbitration Act contain rules of conduct that must be observed by all participants of an international arbitration proceeding, the Argentinian, Brazilian and Mexican legislation does not set forth specific ethical rules applicable to international arbitration, but does specify certain arbitrator 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 piece of legislation and code of ethics governing the legal profession throughout the country. Moreover, while membership of a bar association is mandatory in some countries (such as Argentina, Brazil and Peru), it is not in others (such as Mexico). Similarly, in the absence of specific ethical rules governing international arbitration, the application of the ethical rules governing the legal profession in international arbitration may vary from country to country. In some countries (such as Argentina, Mexico and Peru), ethical rules apply only to counsel acting within the territorial jurisdiction of the respective bar association (therefore, 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 the bar association).[97] In other countries (such as Brazil), ethical rules may apply to all national counsel irrespective of the place in which they are conducting proceedings.
Third, despite the variety of sources and regimes, it is possible to identify certain common ethical standards in the region, such as the duty of counsel to act responsibly and diligently in the matters for which they were hired;[98] the obligation to respect professional secrecy;[99] the prohibition of knowingly using false evidence or deliberately misrepresenting facts to the court;[100] and the duty not to act with recklessness or malice.[101]
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 practising in the legal profession.[102] In general, 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).[103] Conversely, the arbitral centres do not have disciplinary bodies within 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 the lack of specific ethical rules established by Latin American countries for international arbitration. This analysis shows that, in general terms, arbitration laws do not contain ethical rules applicable to international arbitration proceedings. Therefore, in principle, the ethical rules generally applicable to the practice of law (which usually do not consider international arbitration standards) could apply, though pursuant to their own provisions, which could vary largely in terms of territorial or personal scope of application. This may lead to potential controversies on the governing law for ethical conflicts in international arbitration.
The law applicable 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 which rules shall apply to each participant of the proceedings. Precisely because of the international nature of arbitration, it is common for different ethical rules to apply to arbitrators, parties and counsel from different countries.[104]
Although most Latin American countries belong to the civil law tradition, and therefore their legal and ethical rules are similar in substance, the way in which the legal profession is regulated in each Latin American country may vary. Ethical rules set forth in local laws and bar associations’ codes of ethics may apply to lawyers enrolled in the bar association, regardless of their place of practice (e.g., Brazil), while in other countries these rules only apply to those practising in the respective jurisdiction (e.g., Argentina).
Born explains that there are three main choice-of-law options:
- every lawyer in an international arbitration, regardless of the place of arbitration, is only subject to their own ‘home’ rules of professional conduct;
- 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
- uniform international rules of professional conduct apply to all counsel and arbitrators in an international arbitration.
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 yet available as uniform international binding rules of professional conduct do not yet exist.[106]
In our opinion, efforts to find consensus on this matter should note that international arbitration is based, and ultimately relies, on party consent. Likewise, ethical solutions for international arbitration cannot disregard the fact that practitioners will have been educated in different legal systems and traditions, which, in turn, impacts their judgement on the ‘acceptable’ or ‘expected’ ethical conduct they should adopt.[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 a certain set of ethical rules or guidelines (such 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 templates could also help:
- ensure integrity and fairness of proceedings;
- balance the playing field for all participants; and
- standardise the ethical rules applicable to international arbitration.[108]
As for legislative solutions, a possible harmonisation process encouraged by neutral international bodies should be carried out with extreme prudence, with the scope of the task being limited to a set of broadly and generally accepted rules of conduct. This harmonisation process should avoid the temptation of imposing rules that are not considered generally accepted rules of conduct in this field.
In terms 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 arbitral tribunals with the power to conduct proceedings as they consider it appropriate in the absence of agreement by 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 objections that offenders may otherwise raise.[109]
Conclusion
The lack of a uniform set of mandatory ethical rules governing the conduct of arbitrators, parties and counsel in international arbitration proceedings has encouraged several years of debate on the ethical rules that should apply. This also applies in Latin America where the increasing prevalence of international arbitration 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, as, 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 the absence of that agreement.
Specific provisions on ethical behaviour in international arbitration laws would also assist in harmonising ethical standards. Those provisions may recognise arbitral tribunals’ explicit disciplinary powers over the participants in proceedings. An explicit recognition of this (either by law or by participants’ consent)[110] would help to ensure the integrity and fairness of proceedings.
Endnotes
[1]María Inés Corrá and Santiago Lucas Peña are partners 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 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 United Nations Commission on International Trade Law (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, 2010) (available at https://globalarbitrationreview.com/review/the-arbitration-review-of-the-americas/2010); 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, Series D, XIX.15, pp. 359–60; 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 arbitration in the region can be found in the ‘Latin American Arbitral Institutions Guide’ (2023), developed by the Institute for Transnational Arbitration (available at www.cailaw.org/Institute-for-Transnational-Arbitration/Americas-Initiative/arbitral-institutions-guide.html).
[3]See Gary B Born, International Commercial Arbitration (3rd edition, Kluwer Law International, 2021), pp. 3083–84 et seq.; Nigel Blackaby et al., Redfern and Hunter on International Arbitration (6th edition, Oxford University Press, 2015), § 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 (Volume 15, Kluwer Law International, 2011), pp. 383–85; Peter Halprin and Stephen Wah, ‘Ethics in International Arbitration’, Journal of Dispute Resolution, 2018, p. 87.
[4]Patrick Taylor, 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 (Volume 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, Volume 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 (Volume 28, Kluwer Law International, 2013), 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, Volume 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]The IBA Guidelines on Conflicts of Interest (2024 revision) are available at https://www.ibanet.org/resources.
[12]See Preamble of the IBA Guidelines on Party Representation in International Arbitration, available at https://www.ibanet.org/resources.
[13]See Peter Halprin and Stephen Wah, ‘Ethics in International Arbitration’, Journal of Dispute Resolution, 2018, p. 88; Patrick Taylor, et al., op. cit., p. 52; Andrii Zharikov, ‘Conflicts and Ethics in International Arbitration’, in Stavros Brekoulakis (ed.), Arbitration: The International Journal of Arbitration, Mediation and Dispute Management, 2019, Volume 85, Issue 1, p. 41.
[14]The CEA Good Arbitral Practices Code (2019) is available at www.clubarbitraje.com/wp-content/uploads/2019/01/Code-of-Best-Practices-in-Arbitration-of-the-Spanish-Arbitration-Club.pdf.
[15]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, for use 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).
[16]See Introduction of the ICCA Guidelines.
[17]See Code of Conduct for Arbitrators in International Investment Dispute Resolution, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/2318944_coc_arbitrators_e-book_eng.pdf. The Code of Conduct’s preamble expressly recognises that ‘the development of uniform standards that would apply to arbitrators involved in the resolution of international investment disputes would be highly desirable’.
[18]See UN General Assembly’s resolution dated 7 December 2023, Paragraph 3. In principle, the code applies only to an arbitrator or a candidate to perform as arbitrator in international investment disputes, but it may also be applied ‘in any other dispute resolution proceeding by agreement of the disputing parties’ (see Article 2.1).
[19]See, for instance: Ibero-American Arbitration Center, Code of Ethics (http://centroiberoamericanodearbitraje.org/es/codigo-de-etica-de-ciar/); Centre for Conciliation and Arbitration of Panama, Code of Ethics for Arbitrators (available at https://cecap.com.pa/wp-content/uploads/2019/03/4-C%C3%93DIGO-DE-%C3%89TICA-%C3%81RBITROS.pdf); Lima Chamber of Commerce Arbitration Centre, Code of Ethics (available at https://apps.camaralima.org.pe/repositorioaps/0/0/par/reglamentoarbitraje2017/reglamento_ccl_2017.pdf); Arbitration and Mediation Centre of Paraguay, Code of Ethics for Arbitrators and Mediators (www.camparaguay.com/phocadownloadpap/userupload/Codigo%20de%20Etica.pdf); Centre for Mediation and Commercial Arbitration of the Argentine Chamber of Commerce (CEMARC), Code of Ethics (available at https://cdn.prod.website-files.com/63b4671ba9a3410b46ee0c05/6407c4765be50e648ae37128_C%C3%B3digo%20de%20%C3%A9tica.pdf); among others.
[20]See María Inés Corrá, ‘Arbitrability of Substantive Disputes’, in Fabricio Fortese (ed.), Arbitration in Argentina (Kluwer Law International, 2020), p. 41.
[21]See Agustín Gordillo, Tratado de derecho administrativo y obras selectas (14th edition, Fundación de Derecho Administrativo, 2014), Volume 2, pp. 222–23; Santiago Legarre, ‘Poder de policía (historia, jurisprudencia, la doctrina)’, Thomson Reuters Online, AR/DOC/8201/2001.
[22]The NCCCP, enacted through Law No. 17,454 of 19 September 1967, has been amended by, inter alia, Laws No. 22,434 of 16 March 1981 and No. 25,488 of 22 November 2001.
[23]The NCCC was enacted by Law No. 26,994 of 1 October 2014 and entered into force on 1 August 2015.
[24]See María Inés Corrá, ‘Arbitrability of Substantive Disputes’, op. cit., 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.
[25]See Alejandro M Garro, op. cit., pp. 7–8.
[26]The ICAL was enacted by Law No. 27.449 of 4 July 2018.
[27]See ICAL, Article 5; Alejandro M Garro, op. cit., pp. 3–4. Article 5 of the ICAL provides that ICAL provisions shall not affect any other Argentine law under which certain disputes are not arbitrable. Regarding objective arbitrability, the provisions set forth in the NCCC still apply to international arbitration proceedings.
[28]Article 27 of the ICAL provides that the arbitrator shall disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or independence as soon as they are approached in connection with their possible appointment; and that from the time of their appointment and throughout the arbitral proceedings, they shall disclose these circumstances to the parties without delay.
[29]See ICAL, Article 64.
[30]See NCCC, Article 1658(c).
[31]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.
[32]The CPACF Code of Ethics was approved on 31 March 1987 (available at https://new.cpacf.org.ar/noticia/5142/codigo-de-etica).
[33]See Law No. 23,187, Article 6(e).
[34]See CPACF Code of Ethics, Article 19, Paragraphs (a) and (i) and Article 21.
[35]See Law No. 23,187, Article 6(f) and CPACF Code of Ethics, Article 10(h).
[36]See CPACF Code of Ethics, Article 22(d).
[37]See id., Article 22(e). The provinces adopt similar provisions to those of the city of Buenos Aires.
[38]The CEMARC Code of Ethics is available at https://www.cac.com.ar/data/documentos/6_codigo%20de%20etica%20.pdf.
[39]See id., Article 6.
[40]See id., Article 18.
[41]See footnote 19.
[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, 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 disciplinary tribunals’ decisions are usually heard by the contentious administrative courts (see Law No. 23,187, Article 47, and Buenos Aires Province Law No. 5,177, Article 74, among others).
[44]See Law No. 23,187, Article 43 and NCCCP, Articles 34, Subsection 5(d), 35 and 37.
[45]Further, membership of bar associations is mandatory to practise law in the respective jurisdictions. See Law No. 23,187, Article 2(b) and Law No. 5,711 of the Buenos Aires Province, Article 1, Subsection 2, among others. Pursuant to Article 44 of Law No. 23,187, counsel may be sanctioned for, inter alia, frequent delay or negligence, or manifest ineptitude or serious omissions in the performance of their professional duties; and failure to comply with the rules set forth in the CPACF Code of Ethics. Article 45 of Law No. 23,187 sets forth a wide range of sanctions for disciplinary offences, which vary between calls for attention and warnings to fines and temporary disqualification or even exclusion from the practice of the legal profession.
[46]The Brazilian Arbitration Act was enacted on 23 September 1996.
[47]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 the 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, et al., ‘Arbitration in Brazil: An Overview’, SchiedsVZ, 2021, Volume 19, Issue 2, p. 88).
[48]As explained by Brazilian scholars, according to its Reporting Commission, the Brazilian Arbitration Act is inspired by 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 (New York 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, 2004, Volume 21, Issue 6, pp. 459–60; and Fernando Eduardo Serec and Guilherme Carneiro Monteiro Nitschke, ‘Brazil’, in Delos Guide to Arbitration Places, 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 Bill No. 3,293/2021, with amendments to the Brazilian Arbitration Act that depart from the global arbitral rules and practice. The Bill, which broadens arbitrators’ duties and expands arbitration publicity, 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 disputes (see https://www.oabpr.org.br/comissao-de-arbitragem-nota-tecnica-sobre-o-projeto-de-lei-32932021/).
[49]See Anna-Katharina Scheffer da Silveira, et al., op. cit., pp. 86–87; Mauricio Gomm Santos, op. cit., pp. 459–60.
[50]See Brazilian Arbitration Act, Article 13(6).
[51]See id., Article 14(1).
[52]See id., Article 17.
[53]Law No. 8,906 was enacted on 4 July 1994.
[54]Law No. 14,365 was enacted on 2 June 2022 (available at https://www.planalto.gov.br/ccivil_03/_ato2019-2022/2022/lei/l14365.htm).
[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 Law No. 8,906, Article 4.
[57]See id., Article 31.
[58]See OAB Code of Ethics and Discipline, Articles 35–38.
[59]See id., Articles 9–26.
[60]See id., Articles 27–29.
[61]See Anna-Katharina Scheffer da Silveira, et al., op. cit., p. 86.
[62]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.
[63]See Anna-Katharina Scheffer da Silveira, et al., op. cit., p. 88; Till Alexander Backsmann, ‘Legal Framework for International Arbitration’, in Till Alexander Backsmann, et al. (eds), International Arbitration in Brazil: An Introductory Practitioner’s Guide (Kluwer Law International, 2016).
[64]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). The Manual of Procedures for the Ethical-Disciplinary Process was updated by means of Resolution No. 1/2022 of the OAB (available at https://www.oab.org.br/leisnormas/legislacao/resolucoes/0001-2022?search=etica&resolucoes=True&provimentos=True&Normativas=True).
[65]See Fernando Eduardo Serec and Guilherme Carneiro Monteiro Nitschke, op. cit., point 1.1; and Provision No. 91/2000 of the OAB, Article 1.
[66]See Introduction of the CAM-CCBC Code of Ethics.
[67]See Introduction of the CIESP-FIESP Code of Ethics.
[68]See Law No. 8,906, Article 32.
[69]See id., Articles 68–77.
[70]See id., Article 34.
[71]See id., Article 35. Articles 36 to 40 set forth the cases in which each of the sanctions are applicable, as well as the circumstances that may be considered to lead to the sanction.
[72]See Julio César Treviño Azcué, ‘The New Mexican Legislation on Commercial Arbitration’, Journal of International Arbitration, 1994, Volume 11, Issue 4, p. 5; Reynaldo Urtiaga, ‘World View: Mexico as an arbitration seat’, The Resolver, 2021, Volume 2021, Issue 1, p. 28.
[73]See Mexican Commercial Code, Article 1428.
[74]See id., Article 1435.
[75]See Víctor M Ruiz Barbosa and Andrea Orta González Sicilia, ‘Commercial Arbitration: Mexico’, in Oliver Marsden (ed.), Commercial Arbitration, point 49 (Global Arbitration Review) (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, July 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. 216–19 (available at http://www.edkpublicaciones.com/up/pdf/perspectiva_juridica_10.pdf).
[76]See Óscar Cruz Barney, op. cit., p. 82.
[77]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/.
[79]The NACL Code of Ethics applies only to the attorney members of the bar association (see NACL Code of Ethics, Article 1).
[80]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/.
[81]See MBA Code of Ethics, Article 36 and MBA by-laws, Article 43.
[82]See Fernando Cantuarias Salaverry, ‘Commentary to Article 5 – international arbitration’, 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), Volume 1, pp. 52–53; Carlos Alberto Soto Coaguila, ‘El convenio arbitral en la ley peruana de arbitraje de 2008’, in Tratado de Derecho Arbitral (Pontificia Universidad Javeriana, 2011), p. 618.
[83]Presidential Act No. 020-2020 of 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.
[84]See Law No. 30,225, Article 3 (which regulates the law’s scope of application) and Article 45.26 (which approves the Code of Ethics for Arbitration) (available at https://www.gob.pe/institucion/mef/normas-legales/266672-082-2019-ef).
[85]See Code of Ethics of State Contracting Arbitration, Article 1 (https://cdn.www.gob.pe/uploads/document/file/1043097/C%C3%B3digo_de_%C3%89tica_para_el_Arbitraje_en_Contrataciones_del_Estado.pdf?v=1595642292).
[86]See id., Articles 3 and 4.
[87]See id., Articles 19–24.
[88]See id., Article 22.
[89]See Resolution of the Chair of the Board of Deans of the Peruvian Bar Associations No. 001-2012-JDCAP-P, 14 April 2012, Article 1. 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.
[90]See Resolution of the Chair of the Board of Deans of the Peruvian Bar Associations No. 002-2012-JDCAP-P, 14 April 2012, Article 1; and Aleixs Luján, ‘¿Es realmente obligatorio el Código de Ética del Abogado en el Perú?’, Portal Jurídico Enfoque-Derecho, 15 March 2008 (https://www.enfoquederecho.com/2018/03/15/es-realmente-obligatorio-el-codigo-de-etica-del-abogado-en-el-peru/).
[91]Peruvian Arbitration Act, Article 37 (https://cdn.www.gob.pe/uploads/document/file/377449/DL-1071-ley-que-norma-el-arbitraje.pdf).
[92]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.
[93]See Peruvian Arbitration Act, Article 1. See also Fernando Cantuarias Salaverry, ‘Commentary to Article 1 – scope of application’, in Carlos Alberto Soto Coaguila and Alfredo Bullard González (coord.), Comentarios a la Ley Peruana de Arbitraje, op. cit., pp. 1–2.
[94]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).
[95]See CAP Code of Ethics, Articles 92–101 (regarding the sanctioning process),102–111 (regarding the sanctioning regime) and 9–31 (regarding the sanctioning process); as well as Regulations of the Disciplinary Procedure of the Ethics Control Bodies of the Peruvian Bar Associations, Articles 32–40 (regarding the sanctioning regime). Pursuant to these rules, disciplinary proceedings shall be conducted and resolved by the Ethics Council, whose decision may be appealed to the honour 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 honour 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 warnings, fines and suspension or even permanent disqualification from the legal profession.
[96]See Code of Ethics for Arbitration in State Contracts, Articles 19–24. 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 comprise three independent members with well-known ethical and professional reputations chosen by the president of the Council of Ministers, the Ministry of Economy and Finance and the Ministry of Justice and Human Rights, respectively.
[97]However, in Argentina, foreign counsel would not be covered by these rules, while in Peru foreign counsel acting in international arbitration proceedings seated in Peru would be (see the Argentina and Peru sections, above).
[98]See CPACF Code of Ethics, Articles 19 and 22; OAB Code of Ethics, Article 13; INCAM Code of Ethics, Article 3.1.2; and CAP Code of Ethics, Article 12.
[99]See CPACF Code of Ethics, Article 10, Subsection (h); OAB Code of Ethics, Articles 25–27; INCAM Code of Ethics, Article 2.3; and CAP Code of Ethics, Articles 30–37.
[100]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.
[101]See CPACF Code of Ethics, Article 22(e); OAB Code of Ethics, Article 58; INCAM Code of Ethics, Article 4.3; and CAP Code of Ethics, Articles 55 and 60.
[102]See footnotes 47, 77, 101 and 102.
[103]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/.
[104]See Gary B Born, op. cit., 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 (Volume 28, Kluwer Law International, 2013), pp. 315–16.
[105]See Gary B Born, op. cit., pp. 3107–12.
[106]The ICSID Secretariat and UNCITRAL’s Working Group III developed and proposed the Draft Code of Conduct for Adjudicators in Investor–State Dispute Settlement (ISDS) (see ICSID Code of Conduct for Adjudicators in International Investment Disputes). Although its scope of application is limited to adjudicators in investment arbitration, if approved, the body of rules would become a relevant precedent 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, op. cit., 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 – to which most Latin American countries belong – there is no duty of disclosure on the parties or 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 counterparty. Therefore, the expected ethical conduct by parties from both systems may not be the same. On the other hand, the right not to be forced to self-incriminate existing in some countries may collide with the general duties of procedural loyalty and good faith, which embrace the general duty of telling the truth. This rule is explicitly detailed in ICCA Guideline II.C and Guidelines 9–11 of the IBA Guidelines on Party Representation (which add the duty of promptly correcting submissions or restraining from relying on testimonies that are not true). A sound solution to a collision would be to restrain the right not to be forced to self-incriminate to those arenas in which it has been explicitly set forth under the relevant law; and further to restrict the scope of the 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 are false. As discussed, this may be subject to the particular rules of each country, which may vary (as explained by the IBA Arbitration Committee Task Force in addressing questions relating to privilege in international arbitration: ‘The attitudes among jurisdictions on the availability of the [privilege against self-incrimination] in civil procedures and arbitrations are far from being unanimous, much less any common rule to apply universally.’ See www.ibanet.org/document?id=Privilege-report-Annex-7-Privilege-against-self-incrimination, p. 2).
[108]The same agreement may include (to the extent permitted by the applicable law) the parties’ (their counsel and other participants’) waiver of the right to claim for the application of domestic regimes that, in the absence of a waiver, would also be applicable on the basis of 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 (such as Brazil) the law allows arbitrators to sanction bad faith litigation (see Brazilian Arbitration Act, Article 27), in other countries (such as Argentina, Chile and Ecuador) the law does not expressly grant this power to arbitrators, and in other countries (such as Peru) the issue is highly controversial (in Peru, the former arbitration law expressly provided arbitrators with the 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, their 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 this agreement.
