Context and institutional structure in attorney regulation: constructing an enforcement regime for international arbitration

This Article addresses the complete lack of ethical regulation of attorneys in international commercial arbitration. After exposing the range of problems caused by this omission, most significantly the possibility that attorneys in the same proceeding can be abiding by different ethical rules, Professor Rogers proposes a methodology for developing a new code of ethics for international arbitration. This methodology focuses on the relationship between morality and role, viewing professional ethical norms as a product of the functional role served by the advocate-lawyer in relation to other actors within a particular legal system. Ethical obligations in international arbitration, under this approach, must be derived from the inter-relational roles assigned to attorneys in that setting. Having outlined the content for a new code of ethics, Professor Rogers proposes an integrated enforcement regime under which the new ethical code would be implemented by major arbitral institutions and appended onto existing bodies of arbitral rules. This regime would make a new code of ethics the product of party agreement and subject to party modification. Professor Rogers also proposes making attorneys contractually liable for violations of these rules and empowering arbitrators to sanction attorneys for misconduct through a new form of arbitral awards called sanction awards.