Ethics in Calgary - WordPress.com · WCART SIXTH ANNUAL ENERGY, MINING AND RESOURCES ARBITRATION...
Transcript of Ethics in Calgary - WordPress.com · WCART SIXTH ANNUAL ENERGY, MINING AND RESOURCES ARBITRATION...
WCARTSIXTH ANNUAL ENERGY, MINING AND
RESOURCES ARBITRATION CONFERENCE
Issues of Conflicts and Ethics in International Arbitration
● Murray A. Clemens, Q.C. (Chair), Nathanson, Schachter & Thompson, LLP, Vancouver
•www.icdr.org
● Steven K. Andersen, Esq., Vice President, International Development International Centre for Dispute Resolution, Salt Lake City, Utah
● Murray L. Smith (Chair), LLM Chartered Arbitrator, Smith Barristers, Vancouver
● John A. Terry, Torys, Toronto
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Ethical Questions
1. What ethical issues arise when
dealing with the appointment of
the arbitration tribunal and how do
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they differ when using different
appointment methodologies?
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ICDR Case Filing Trends
Trends: Global Leader of “INTERNATIONAL” Cases since 20012011 ICDR Cases=994, 2011 ICC Cases= 794,
ICDR Mediations=95, ICDR Webfile = 163
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There were 44 Challenges of Arbitrators in the 994 ICDR 2011 Caseload (about 4%).
– 35 at Appointment Disclosure Stage
• 21 Removed (60%)
• 14 Reaffirmed (40%)
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• 14 Reaffirmed (40%)
– 9 at Pre-hearing/Award stage
• 2 Removed (20%)
• 7 Reaffirmed (80%)
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What did the King want to hear or in other words, what do institutions and parties want to have in arbitrator disclosures?
Should the two sisters or party-appointed arbitrators need to clarify their partiality, if any, to the parties in the case?
Ethical Questions in International Arbitration
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to the parties in the case?
• What should have Cordelia disclosed to King Lear or
to what degree do arbitrators need to disclose
information?
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7. Appoint your ArbitratorsClaimant
Jose Martinez 6
John Smith X
Ricardo Suarez X
Antonio San Martin 3
James Jones X
Linda Cruz 4
Charles Brown 10
Ramon Gonzales X
Respondent
Jose Martinez X
John Smith 1
Ricardo Suarez 10
Antonio San Martin 3
James Jones X
Linda Cruz 2
Charles Brown 6
Ramon Gonzales X
1st
2nd
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Ramon Gonzales X
Francisco Jimenez 2
George Webber 5
Esteban Garza 7
Barry Lewis 9
Mercedes Sala 1
Nathaniel Peters X
Sarah Durham 8
Ramon Gonzales X
Francisco Jimenez 5
George Webber X
Esteban Garza 8
Barry Lewis X
Mercedes Sala 9
Nathaniel Peters 4
Sarah Durham 7
3rd
Ethical Questions
2. What issues arise from a practical
and ethical point of view when a party
wishes to interview potential arbitrators
before appointment? What are the limits
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before appointment? What are the limits
of matters to be discussed and what kind
of disclosure should be made following
appointment?
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Ethical Questions
3. An issue which you believe is
important if not pivotal to the
result is not being addressed by
the parties. Do you raise the point,
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the parties. Do you raise the point,
when and how? If the issue occurs
to you after the close of the
hearing, what do you do?
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Ethical Questions
4. You have conducted a mediation and
the parties have reached a settlement of
a complex dispute. Both parties ask to
you to act as an arbitrator should
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differences arise in the implementation
of the dispute. What are the ethical
and practical issues. How are they
addressed?
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5. What resources are available in terms of rules and ethical codes to help reconcile differing practices models
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differing practices models around the world?
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The 1977 Code of Ethics language provided for
disclosures WHICH ARE LIKELY TO AFFECT
IMPARTIALITY OR WHICH MIGHT REASONABLY
CREATE AN APPEARANCE OF PARTIALITY OR
BIAS.
The 2004 Code of Ethics language provides
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The 2004 Code of Ethics language provides
for disclosures WHICH MIGHT
REASONABLY AFFECT IMPARTIALITY OR
LACK OF INDEPENDENCE IN THE EYES OF
ANY OF THE PARTIES.
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How carefully do parties manageappropriate ex-parte communications withtheir potential party appointed arbitrator?
Ethical Questions in International Arbitration
1. General nature of the controversy
2. Discuss the candidate’s qualifications
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2. Discuss the candidate’s qualifications
3. Availability to serve without causing delay
4. Independence in relation to the parties
5. Suitability of candidates for presiding arbitrator
Based upon the Code of Ethics, what sort of commitments should be made by the arbitrators?
Ethical Questions in International Arbitration
Availability to Serve:
The 2004 revision imposes an obligation on
Duty to:
•Public
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imposes an obligation on the arbitrator to determine his or her competence and availability to serve in the case.
•Parties
•Process
•Participants (all)
•Pro bono
Ethical Questions
6. Are you qualified to undertake and complete the appointment and are you able (time, availability, health, other) to undertake and complete the arbitration within the required time? We can discuss this issue in terms of what kind
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discuss this issue in terms of what kind of a personal examination should one subject oneself to and to what extent is modesty a virtue.
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Ethical Questions
7. What does one do when parties are represented by counsel with different experience and skill? In this circumstance, how does an arbitrator ensure that the parties involved in an arbitration are fairly informed and have
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arbitration are fairly informed and have an adequate understanding of the procedural aspects and legal issues? Is there a role for the arbitrator to “even the playing field”?
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Ethical Questions
8. Fees and payment terms. Is there an obligation to give particularized accounts?
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accounts?
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Ethical Questions
9. Do you have a duty to move an arbitration on when the claimant, either advertently or inadvertently is not pressing the matter forward and the respondent is only too happy to stand idle? This is a situation where arbitration is markedly different than litigation. In litigation, the defending party is usually brought into the process against its will, whereas in arbitration the parties
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process against its will, whereas in arbitration the parties have agreed to resolve their disputes in arbitration. This distinction was commented on by the British Columbia Court of Appeal in a recent decision Premium Brands Operating GP Inc. v. Turner Distribution Systems Ltd., 2011 BCCA 75 http://www.courts.gov.bc.ca/jdb-txt/CA/11/00/2011BCCA0075cor1.htm
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WCARTSIXTH ANNUAL ENERGY, MINING AND RESOURCES
ARBITRATION CONFERENCE
Issues of Conflicts and Ethics in International Arbitration
● Murray A. Clemens, Q.C. (Chair), Nathanson, Schachter & Thompson, LLP, Vancouver
● Steven K. Andersen, Esq., Vice President,
•www.icdr.org
● Steven K. Andersen, Esq., Vice President, International Development International Centre for Dispute Resolution, Salt Lake City, Utah
● Murray L. Smith (Chair), LLM Chartered Arbitrator, Smith Barristers, Vancouver
● John A. Terry, Torys, Toronto
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