The need for regulating counsel conduct in international arbitration

Detlev Vagts had a visionary perspective on the impact of globalisation on the legal profession. He has repeatedly pointed to the problems stemming from the absence of ethical regulation of the transnational practice of law, including dispute settlement before international courts and tribunals. He was already doing so at a time when the proliferation of international dispute settlement bodies was a barely discernible emerging phenomenon, and well before the dramatic increase in treaty-based arbitrations between States and foreign investors under the International Convention on the Settlement of Investment Disputes between States and Nationals of other States (‘ICSID Convention’) and other arbitral rules that has marked the past decade. In 1996, he predicted that ‘[a]s the activities of international law agencies, both public and private, involve more countries and more cultures, disputes about standards of behavior can be expected to multiply’ and, as a response, recommended that ‘[a] set of rules to guide the behavior of lawyers before international panels would be useful’.

Equally Detlev Vagts foresaw how difficult it would be to establish formal rules in an institutional context, in which numerous States with various interests and different approaches to the regulation of lawyers interact. He therefore, attributed great potential to private bodies developing guidelines which could then be adopted by dispute settlement institutions.