Arbitrators Without Powers? Disqualifying Counsel in Arbitral Proceedings

An excerpt from the introductory paragraphs of the article:

The succession of conferences and the proliferation of soft law instruments are always pretty reliable indicators that a particular problem has risen to the level of the consciousness of the international community. That is abundantly true here: They are testimony to a general recognition of the need to identify what limits—if any—there may be to the permissible conduct of counsel in international arbitration, and to identify—always the most interesting question—the appropriate fora in which such questions can be addressed and resolved.

My focus here, though, will be on a relatively small piece of the overall puzzle: Rather than to approach globally—from a God’s eye view—the problem of sanctions for supposed “counsel misconduct,” I want instead to focus on one particular sanction—one that is growing, and promises to grow even more, in importance: the ability of the tribunal to “exclude,” or as we say in the States, “disqualify,” counsel from the proceedings.

Here is an outline of the argument [in the article]:

I.         The “Power” of Arbitrators to Exclude Counsel: ¶¶ 3-11

II.         “Conflicts” with Members of the Tribunal: ¶¶ 12-38

III.         “Conflicts” between Clients: ¶¶ 39-42

IV.         National Courts and Arbitral Tribunals: ¶¶ 43-54

V.         Keeping Our Eyes on the Ball: ¶¶ 55-71

VI.         Transnational Rules: ¶¶ 72-77

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