To a great extent, the institution of international arbitration owes its success to practitioners who promote its advantages to clients and the greater community. The professional status of these practitioners impacts the legitimacy, real and perceived, of international arbitration. When they conduct themselves fairly, they strengthen the perception of international arbitration′s fairness and other traits. When they conduct themselves unfairly, they lend credence to any perceptions of the practice as biased and less fair, thus weakening it and threatening its success and popularity.
The lack of clear guidelines on which set or sets of ethical rules apply to counsel litigating international matters and the potential overlap of different (and at times contradictory) standards creates ethical dilemmas that lawyers are unequipped to solve individually. As there is no transnational institution governing the practice of international arbitration, any potential solution must be voluntarily accepted by the community.
While over the years, scholars devoted considerable attention to this issue, a crystallised solution remains elusive. Could it be that sophisticated lawyer —who, through many years of practice, have learned the strategic potential of international arbitration′s procedures and how to work in its grey areas and manipulate its flexibility— have no motivation to change the status quo? Is there a risk that, by playing in the ethical no-man′s land, lawyers are bending international arbitration′s celebrated flexibility to the breaking point? I try to answer these questions and more.