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The International Legal Profession: A Need for More Governance?

Published online by Cambridge University Press:  27 February 2017

Detlev F. Vagts
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Notes and Comments
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American Journal of International Law , Volume 90 , Issue 2 , April 1996 , pp. 250 - 261
Copyright
Copyright © American Society of International Law 1996

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Footnotes

*

This Note would not have been possible but for the help of an unusual number of collaborators. A preliminary version was presented to a meeting of the Executive Council of the American Society of International Law and the Board of Editors of the Journal on October 27, 1995, and many of those present made useful comments. Written comments and materials were provided by Jerome Ackerman, Wallace Baker, James Carter, Lori F. Damrosch, Keith Highet, Andreas F. Lowenfeld, W. Michael Reisman and William W. Park. My appreciation is also due to my diligent research assistants, Jonathan Jenkins and P. Dan Smith of the Harvard Law School class of 1997.

References

1 On the transition of the American bar from a small elite body to a mass profession, see The New High Priests: Lawyers in Post-Civil War America (Gerard Gewalt ed., 1984).

2 Tang Thi Thanh Trai Le, The French Legal Profession: A Prisoner of Its Glorious Past?, 15 Cornell Int'l L.J. 63,87(1982).

3 Margareta Nilsson, Sweden, in 2 Transnational Legal Practice 339, 340 (Dennis Thompson ed., 1982).

4 Ivo Caytas, Transnational Legal Practice: Conflicts in Professional Responsibility 19 (1992).

5 Keith Highet, A Personal Memoir of Eduardo fiménez de Aréchaga, 88 ASIL Proc 577, 579 (1994).

6 United States v. Iran, Case A–18, 5 Iran-U.S. CI. Trib. Rep. 251, 336 (1984).

7 But Martin Hunter, Ethics of the International Arbitrator, 53 Arbitration 219, 220 (1987), finds the world of commercial arbitration to be no longer a club of gendemen but one diat needs explicit guides.

8 See generally Wayne Mapp, The Iran-United States Claims Tribunal: The First Ten Years (1993); Jacomyn van Hoff, Commentary on Uncitral Arbitration Rules: The Application by the Iran-U.S. Claims Tribunal (1991); Stewart Baker & Mark Davis, The Uncitral Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (1992); Rahmatullah Khan, The Iran-United States Claims Tribunal: Controversies, Cases, and Contributions (1990).

9 W. Michael Reisman, Nullity and Revision 116–17 (1971).

10 For the rules drafted by the International Bar Association, see 26 ILM 583 (1987).

11 For commentary, see Laurel Terry, An Introduction to the European Community's Legal Ethics Code, 7 Geo. J. Legal Ethics 1, 345 (1993). The text is reproduced in Stephen Gillers & Roy D. Simon, Regulation of Lawyers: Statutes and Standards 640 (1995).

12 ABA, Model Rule of Professional Conduct 8.5, comment [6]. For a critique, see Malini Majumdar, Ethics in the International Arena: The Need for Clarification, 8 Geo. J. Legal Ethics 439 (1995).

13 David D. Caron, The Nature of the Iran–United States Claims Tribunal and the Evolving Structure of International Dispute Resolution, 84 AJIL 104 (1990).

14 For a parallel review of modes of regulating lawyers within the United States, see David Wilkins, Who Should Regulate Laviyersl 105 Harv. L. Rev. 799, 805–09 (1992).

15 Wolcott v. Ginsburg, 746 F.Supp. 1113 (D.D.C. 1990). For commentary, see Lawrence Ebb, A Tale of Three Cities: Arbitrator Misconduct by Abuse of Retainer and Commitment Fee Arrangements, 3 Am. Rev. Int'l Arb. 177 (1992).

16 The ICSID Convention, for example, provides that arbitrators shall be persons “who may be relied upon to exercise independent judgment.” Convention on the Setdement of Investment Disputes between States and Nationals of Other States, Mar. 18, 1965, Art. 14, 17 UST 1270, 1277, 575 UNTS 159, 168. The ICSID Rules of Arbitration, Art. 2, provide procedures for handling challenges. See Rules 2 and 9, ICSID, Basic Documents (1985).

17 Bengston v. Federal Republic of Germany, 28 ILR 549 (Arbitral Comm'n on Property, Rights and Interests in Germany, 1959).

18 Lehigh Valley Ry. v. Germany, 8 R.I.A.A. 104 (1932); L. H. Woolsey, The Sabotage Claims Against Germany, 34AJIL23 (1940).

19 Baker & Davis, supra note 8.

20 July 29, 1899, 32 Stat. 1779, 1793, 1 Bevans 230, 238.

21 Oct. 18, 1907, Art. 45, 36 Stat. 2199, 2223, 1 Bevans 577, 593.

22 Sept. 26, 1928, Art. 22, 93 LNTS 343, 353.

23 Thus, Herbert Briggs, not a lawyer, appeared in four cases before the Court. Stephen M. Schwebel, Herbert W. Briggs (1900–1990), 84 AJ1L 531, 531–32 (1990).

24 34 OJ. (No. L 176) 7 (1991), 3 Common Mkt. Rep. (CCH) 4750.

25 See also Article 13 of the Rules of the Administrative Tribunal of the United Nations, UN Doc. A/CN.5/ 1 (1950), as amended, reprinted in Documents on International Administrative Tribunals 12, 19 (C. F. Amerasinghe ed., 1989), which provides that an applicant may be represented by a UN staff member or by counsel authorized to practice in any member state.

26 The U.S. Treasury rules appear at 31 C.F.R. pt. 10 (1995), and the SEC rules at 17 C.F.R. pt. 201 (1995).

27 The American position on the inherent power of courts to control their bars is particularly strong, extending often to the proposition that such regulatory power is exclusive. See Charles Wolfram, Lawyer Turf and Lawyer Regulation—The Role of the Inherent Powers-Doctrine, 12 U. Ark. Little Rock L.J. 1 (1989).

28 La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899); Claims against Venezuela: Commissions under the Conventions between the United States and Venezuela of April 25, 1866, December 5, 1888, March 15, 1888, and October 5, 1888, 2 John Bassett Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party 1659 (1898); The Gardiner Case, id. at 1255.

29 In re Sofaer, No. 280–93 (D.C. Ct. App. 1995), Nat'l L.J., Dec. 27, 1993, at 6; Nat'l L.J., Aug. 9, 1993, at 2; Legal Times, Sept. 18, 1995, at 1. The rule allegedly violated is ABA Model Rule 1.11 as enacted in the District of Columbia, which governs the behavior of former government attorneys.

30 Such representation would probably violate Model Rule 1.11(c) (1).

31 For the Convention, June 10, 1958, see 21 UST 2517, 330 UNTS 38. Public policy as a ground for challenge is left open by Article V of the Convention, as is the claim that “[t]he composition of the arbitral authority … was not in accordance with the agreement of the parties.” Such challenges rarely succeed. Unsuccessful attempts include Imperial Ethiopian Gov't v. Baruch-Foster Corp., 535 F.2d 334 (5th Cir. 1976) (affirming foreign award despite claim arbitrator disqualified since he drafted Ethiopian civil code); cf. Fertilizer Corp. of India v. IDI Management Inc., 517 F.Supp. 948 (S.D. Ohio 1981) (ruling that arbitrator's previous activity as counsel for party did not constitute violation of U.S. public policy).

32 W. Laurence Craig, William W. Park & Jan Paulsson, International Chamber of Commerce Arbitration, ch. 13 (2d ed. 1990). For recent developments, see Dominique Hascher, ICC Practice in Relation to the Appointment, Confirmation, Challenge and Replacement of Arbitrators, 6 ICC Int'l Ct. Arb. Bull. 4 (1995).

33 The ABA Model Rules seem to deal with arbitrators only once, in Rule 1.12 concerning restrictions on former arbitrators. However, various rules on conduct in relation to a “tribunal,” such as Rule 3.3 calling for candor in dealing with tribunals, may apply. The definitions used in the District of Columbia and Texas clearly do apply to arbitration. The older ABA Model Code of Professional Responsibility said that tribunals included, besides courts, other “adjudicatory bodies.”

34 Jan Paulsson, Standards of Conduct for Counsel in International Arbitration, 3 Am. Rev. Int'l Arb. 214 (1992).

35 Andreas F. Lowenfeld, Singapore and the Local Bar: Aberration or III Omen?, J. Int'l Arb., No. 3, 1988, at 71.

36 Bidermann Indus. Licensing Inc. v. Avmar N.V., 570 N.Y.S.2d 33 (1st Dep't 1991). For commentary, see Peter C. Thomas, Disqualifying Lawyers in Arbitrations; Do the Arbitrators Play Any Proper Rolet, 1 Am. Rev. Int'l Arb. 562 (1990). Compare Image Technical Servs., Inc. v. Eastman Kodak Co., 820 F.Supp. 1212 (N.D. Cal. 1993) (applying forum law as to the disqualification of counsel on account of their prior representation of a party to the litigation in various countries).

37 See note 15 supra.

38 See Shabtai Rosenne, The Law and Practice of the International Court 196–205 (2d ed. 1985); Geneviève Gutomar, Commentaire du Règlement de la Cour Internationale De Justice 182–200 (1983).

39 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), 1971 ICJ Rep. 3, 3–4 (Order of Jan. 26); and id. at 16, 18–19 (Advisory Opinion of June 21).

40 1976–77 ICJ Y.B. 114; 1990–91 ICJ Y.B. 175.

41 1991–92 ICJ Y.B. 198.

42 1989–90 ICJ Y.B. 157.

43 That decision was a fateful one since the Court divided evenly, with the President casting the tie-breaking vote.

44 Rosalyn Higgins, The International Court and South West Africa: The Implications of the Judgment, 42 Int'l Aff. 573, 578–88 (1966); William M. Reisman, Revision of the South West Africa Cases, 7 Va. J. Int'l L. 1, 55–58 (1966); The South West Africa/Namibia Dispute: Documents and Scholarly Writings on the Controversy Between South Africa and the United Nations 291–92 (John Dugard ed., 1973). Leo Gross, The International Court of Justice: Consideration of Requirements for Enhancing Its Rôle in the International Legal Order, 65 AJIL 253, 294 (1971), suggests that Article 24 of the Statute may place an unwelcome responsibility on the President in the matter of initiating the process of recusal.

45 The South West Africa/Namibia Dispute, supra note 44, at 292.

46 Rights of Nationals of the United States in Morocco (Fr. v. U.S.), 1952 ICJ Rep. 176 (Aug. 27).

47 Fisheries Case (UKv. Nor.), 1951 ICJ Rep. 116 (Dec. 18).

48 See Bengtson v. Federal Republic of Germany, 28 ILR 549.

49 Baker & Davis, supra note 8, at 54–55.

50 Bengston, 28 ILR at 555.

51 Code of Conduct for Proceedings under Chapters 18 and 19 of the Canada-United States Free Trade Agreement, 54 Fed. Reg. 14,371 (1989), reprinted in Free Trade Law Rep. (CCH) ¶ 92–226 (1991). For sharply different views on the applicability of the rules on conflicts of interests of commissioners, see Softwood Lumber Products from Canada, 17 I.T.R.D. (BNA) 2055 (Extraordinary Challenge Committee, Aug. 3,1994), especially the dissent by Judge Wilkey, id. at 2115–20. Presumably, a similar code will be published for the NAFTA proceedings. See Jeffrey P. Bialos & Deborah E. Siegel, Dispute Resolution under the NAhTA: The Newer and Improved Model, 27 Int'l Law. 603 (1993).

52 Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to Agreement Establishing the World Trade Organization, opened for signature Apr. 15, 1994, reprinted in 33 ILM 1144, 1226 (1994).

53 See KHAN, supra note 8, at 72–73; Baker & Davis, supra note 8, at 39–40.

54 See Arthur Rovine, Remarks, 77 ASIL Proc. 26, 27 (1983); Baker & Davis, supra note 8, at 38.

55 Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice, Jan. 18, 1985, 24 ILM 246, 248 (1985).

56 Stephen M. Schwebel, International Arbitration: Three Salient Problems, ch. III (1987).

57 This is the disposition in the German Rules of Civil Procedure ¶1032, 3 Münchener Kommentar zur Zivtlprozessordnung §1032 (Gerhard Lüke & Alfred Walchshöfer eds., 1992); and Japanese Code of Civil Procedure Art. 792, see Teruo Doi, Japan, in 2 International Handbook on Commercial Arbitration (Albert Jan van den Berg & Pieter Sanders eds., 1984).

58 Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968). Five members of the Court agreed with the view stated in the text, although two of them concurred in the judgment setting aside the award. This case is characterized by a German commentator as “perhaps the most important [decision] that was ever handed down on arbitral integrity.” Peter Schlosser, Das Recht der Internationalen prtvaten Schiedsgerichtsbarkeit 384 (2d ed. 1989). Schlosser then proceeds to cite several European cases not consistent with it.

59 See, e.g., Gerald Aksen, Harmonizing Independence, Disclosure and Counsel Contacts, News & Notes (Inst, for Transnat'l Arb.), No. 4, 1991, at 1. See commentaries reprinted in Craig, Park & Paulsson, supra note 32, App. VI, at 43, 47.

60 Schlosser, supra note 58, at 386.

61 Andreas F. Lowenfeld, The Party-Appointed Arbitrator in International Controversies, 30 Tex. Int'l L.J. 59 (1995).

62 Thus, ABA Model Rule 1.12 says, “An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party.” Charles Wolfram, Modern Legal Ethics 469 (1986), comments, “Some arbitrators, however, are appointed with no pretense that they are neutral.” It is not clear that all party-appointed arbitrators can be so described.

63 The evolution of American attitudes is described in James H. Carter, Livingwith the Party-Appointed Arbitrator: Judicial Confusion, Ethical Codes and Practical Advice, 3 Am. Rev. Int'l Arb. 153 (1992). For a critical view focusing on domestic arbitration, see Deseriee A. Kennedy, Predisposed with Integrity: The Elusive Quest for Justice in Tripartite Arbitrations, 8 Geo. J. Legal Ethics 749 (1995).

64 Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 760 (11th Cir. 1993).

65 As to the United States, see AAA Commercial Arbitration Rule 16. As to Japan, see Doi, supra note 57.

66 Schlosser, supra note 58, at 386.

67 See note 10 supra.

68 Craig, Park & Paulsson, supra note 32, §13.07.

69 Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir. 1993) (finding arbitrator's “conduct not only unobjectionable, but commonplace”). But see Totem Marine Tug & Barge, Inc. v. North Am. Towing, Inc., 607 F.2d 649 (5th Cir. 1979).

70 See AM & S Europe v. Commission, 1982 ECR 1575.

71 Rosenne, supra note 38, at 542; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, 1993 ICJ Rep. 325, 336–37 (Order of Sept. 13).

72 See Keith Highet, Evidence, the Chamber and the ELSI Case, in Fact-Finding before International Tribunals 33, 65–68 (Richard Lillich ed., 1992).

73 See Paulsson, supra note 34.

74 Jacques Hamelin & André Damien, Les Regles de la profession d'avocat 405–06 (7th ed. 1992).

75 That the expense of litigating international disputes has become a significant problem is evidenced by the establishment of a fund to help “indigent” countries in litigating before the International Court of Justice. Peter H. F. Bekker, International Legal Aid in Practice: The ICJ Trust Fund, 87 AJIL 659 (1993).

76 See generally Andreas F. Lowenfeld, The Two-Way Mirror: International Arbitration as Comparative Procedure, 7 Mich. Y.B. Int'l Legal Stud. 163 (1985).

77 Paramount Communications, Inc. v. QVC Network, Inc., 637 A.2d 34, 52 (Del. 1994).

78 Ordre des Avocats de la Cour de Paris, Règlement intérieur et textes applicables à la profession d'avocat, Art. 1,3 (1994).