Author: Jan Paulsson*
Published: December 1992
Description: The simple solution would be that a lawyer participating in an international arbitration would be judged by the standards of his bar, whatever it may be. After all, what would be fairer than to expect a French avocat to comply with French canons, or a Japanese bengoshi to adhere to those of the professional body which has licensed him?
The simple solution is attractive, but lawyers are trained to be a wary lot. So we imagine a number of factual situations where the simple solution does not appear to provide an adequate answer; perhaps it was too good to be true. (The layman may feel we are just snobs for whom the uncomplicated isn’t good enough, like the critics whom Macaulay was teasing when he wrote of Pilgrim’s Progress that it was “loved by those who are too simple to admire it.”)
In fact there are some troubling questions. For example:
— in cases where counsel come from two different countries where standards are quite inconsistent on a given point, does the client whose lawyer is subject to the lowest standard have an unfair advantage?
— whether or not such an advantage would be unfair, if it is indeed an advantage, will parties — who in most jurisdictions are free to be represented in arbitration by absolutely whomever they wish — be tempted to choose representatives who are subject to no professional discipline, thus raising the spectre of “rogue lawyers” infesting the realm of international arbitration?
— are lawyers who are members of more than one bar (such as the present author) to be held to whichever standard is higher? or whichever is lower? or does the answer depend on the place of arbitration? on whether opposing counsel is a fellow member of one of the relevant bars? on what letterhead they use in a particular instance? or should such lawyers simply be held to the standards of whichever professional regulatory body is seized with a complaint, on the ground that persons who hold themselves out to be professionals must comply with all bodies that have licensed them to act in that capacity?
*Partner, Freshfields Paris.