1. ARBITRATION TRIBUNALS & CODES of BEHAVIOUR a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator & Mediator President CIArb Quito, Ecuador 10 th July 2007

2. OVERVIEW of PRESENTATION  Introduction  International Commercial Arbitration  Composition of Arbitral Tribunals  Arbitral Tribunals  Codes of Conduct & Guidelines  Current Issues  Conclusions

3. INTERNATIONAL COMMERCIAL ARBITRATION (1): OVERVIEW  What Is It ?  “International”  “Commercial”  “Arbitration”  Profusion of Relevant/Applicable Laws  Institutions and Tribunals  Finality and Enforceability

4. INTL. COMM. ARBITRATION (2) INSTITUTIONS  UNCITRAL  ICSID/NAFTA/ECT  ICC/LCIA  Chartered Institute of Arbitrators  Regional Institutions incl. CIETAC/AAA  LMAA  GAFTA/FOSFA/LME/RSA  Other

5. INTL. COMM. ARBITRATION (3) PROFUSION of LAWS  Law of the Contract (Lex Causae)  Law of the Arbitration Agreement  Law governing Capacity of Parties  Law of the Arbitration (Lex Arbitri)  Law of Seat (Lex Curiae)  Law of Place of Enforcement  Other Potentially Applicable Laws

6. INTL. COMM. ARBITRATION (4) AWARDS & ENFORCEMENT  Appeals  Jurisdiction  Procedural Failures  Issues of Law  Exequatur  Enforcement  New York Convention 1958

7. ARBITRAL TRIBUNALS (1) - OPTIONS  As Provided by Agreed Rules or Lex Arbitri  1 Arbitrator  3 Arbitrators  2 Arbitrators + Umpire  5 Arbitrators  Party-Appointed Arbitrators (PAAs)  Appointment of Chairman  by the PAAs  By the Institution

8. ARBITRAL TRIBUNALS (2) – CONDUCT  Codes of Conduct vs Practice Guidelines  CIArb/ICC/ABA/SIAC/Other  IBA Disclosure Guidelines  Mandatory or Guidelines ?  CIArb – Misconduct Proceedings  Effect in Court of Law  Burden of Justification

9. IBA GUIDELINES (1)  “Guidelines on Conflict of Interest in International Arbitration” [22 nd May 2004]  The International Norm  Keys are Impartiality and Independence  Emphasis on Disclosure  Applicable to All International Arbitrators  Effect of Breach  1987 Rules of Ethics Remain in Force

10. IBA GUIDELINES (2)  Arbitrator Must Decline Appointment/Resign  View of “Fair-Minded Informed Observer”  Disclosure  Objection by the Parties  Waiver  Red List – Waivable and Non-Waivable  Orange List – Duty to Disclose  Green List – No Duty to Disclose

11. ABA CODE of ETHICS (1)  “Code of Ethics for Arbitrators in Commercial Disputes” [9 th February 2004]  Domestic and International Arbitration  Recognises Differences Judges/Arbitrators  Allows for Non-Neutral Party-Appointees  Applies in US Domestic Arbitration  Californian Code Goes Further  Californian Courts Go Even Further

12. ABA CODE of ETHICS (2)  “An Arbitrator Should Uphold the Integrity and Fairness of the Process”  Avoid Impropriety in Communicating with Parties  Conduct Proceedings Fairly and Diligently  Respect Trust and Confidentiality  Integrity Regarding Fees/Expenses  Advertising Must Be Truthful/Accurate  Advertising Not Permitted in Other Jurisdictions

13. CIArb CODE of CONDUCT (1)  CIArb is Self-Regulating Professional Institute  CIArb “Code of Professional And Ethical Conduct for Members” [January 2007]  Binding on All CIArb Members  Arbitrators/Mediators/Any Other  Breach of Code is Professional Misconduct  Full Disciplinary Process

14. CIArb CODE of CONDUCT (2)  Avoid Conduct Unbecoming  Uphold Integrity & Fairness of the Process  Disclosure of Potential Conflicts  Failure to Disclose may lead to disqualification.  Accept Appointment Only If Arbitrator has:  Suitable Experience and Ability  Available time to proceed with the arbitration  Can Publicise Qualifications Experience  No Advertising

15. CIArb CODE of CONDUCT (3)  Overriding obligation to act fairly and impartially as between the parties, at all stages of the proceedings  No Delegation of Responsibilities  Observe Trust and Confidentiality n No Private Communications Arbitrator/Party –Includes telephone  Integrity Regarding Fees/Expenses  Reasonable Fees and expenses

16. CIArb GOOD PRACTICE GUIDELINES  “Good”, not necessarily “Best”, Practice  Assistance for Arbitrators  >1,000 Man-Years of Experience  Origins in English Arbitration Act 1996  Now Internationalised  Covers practical issues not covered by Statutes  Regulatory Effect

17. CURRENT ISSUES AFFECTING CONDUCT  Arbitrator Interviews  Non-Qualified Arbitrators  Non-Professional Arbitrators  Tribunal Dynamics  Cultural Differences  Arbitrators Appointed by States  “The Club”

18. CONCLUSIONS (1)  Do Minimum Standards Exist ?  Yes !!!  Can They Be Improved ?  Possibly, but Not Obviously  Absurd Court Decisions  Risk of Over-Regulation  Common Sense Must Prevail

19. CONCLUSIONS (2) THANK YOU for your ATTENTION