Ethical Rules for International Arbitrators - 11
Ramon Mullerat OBE
XI. Advertising and solicitation by arbitrators
Advertising and client solicitation are illustrative of provisions of professional codes that are concerned with business ethics and limiting competition 28.
In the US until recently, the Code of Professional Responsibility for Arbitrators of Labor Management Disputes prohibited advertising by labor arbitrators. In fact, Opinion Letters by the NAA elaborated on this prohibition, examining and opining on various actions that might be considered advertising and therefore were violations of the Code. After much debate, however, the National Academy of Arbitrators in 2001 voted to delete this prohibition, replacing it with a prohibition against "false or misleading advertising". Code Section 1(C) (3). This was preceded in June 2000 by a partial lifting of the ban through an amendment that permitted arbitrators to maintain websites.
With regard to solicitatioa, the NAA left intact Code Section 1(C)(4), which provides as follows: (4) "An arbitrator must not solicit arbitration assignments: a) solicitation, as prohibited by this section, includes the making of requests for arbitration work through personal contacts with individuals parties, orally or in writing..." 29.
An arbitrator should avoid marketing that is misleading or that comprises impartiality. An arbitrator should ensure that any advertising or other marketing to the public conducted on the arbitrator's behalf is truthful. An arbitrator may discuss issues relating to compensation with the parties but should not engage in such discussions if they create an appearance of coercion or other impropriety and should not engage in ex parts communications regarding compensation.
Some US state bars require lawyers to file advertisements and writings which are not exempt with the state bar advertising review committees 30.
XII. Settlement
A substantial number of arbitrations end with a settlement. This tend to happen at a fairly advanced stage of the procedure and mainly as the result of the parties becoming more realistic and more aware of the costs as the procedure unfolds 31. We must not forget that the objective of the arbitration is to resolve a dispute 32 and that the will of the parties is paramount.
The possibility for an arbitration assisting the parties to reach a settlement is well established in some jurisdictions but not in others. It is not improper for an arbitrator to suggest to the parties that they discuss the possibility of settlement of the case. However, an arbitrator should not be present or otherwise participate in the settlement unless requested to do so by all parties. However, the arbitrator should not exert pressure on any party to settle (Canon IV, AAA/ABA Code). Nothing prevents a person from acting as a mediator or conciliator of a dispute in which he has been appointed as arbitrator, if requested to do so by all parties or where authorized or requested to do so by applicable laws or rules.
In the event that all parties agree upon a settlement of issues in the dispute and request an arbitrator to embody that agreement in an award, an arbitrator may do so, but is not required to do so unless satisfied with the propriety of the terms of the settlement (Canon VI, AAA/ABA Code).
However, the arbitrator shall resign if, as a consequence of his involvement in the settlement process, the arbitrator develops doubts as to his ability to remain independent or impartial in the justice cause of the arbitration proceedings (Part J, (4) (D) draft of IBA Guidelines on disclosure in international commercial arbitration).
28 Stephen K. Huher, "Competition at the bar and the proposed code of professional standards", 57 N.C. Law Review. 1979. p. 559. back
29 Jacqueline Druker, op. cit. back
30 Richard Hile, "Rules regulating advertisement and griten (sic) solicitation communications: An overview", 58 l?.xas_BarJoura_al 1995. back
31 Goklberg, Sander, Rogers, Dispute.Rcsolution, 1991, p. 549. back
32 This is what US Justice Burger called "healing human conflict". back