"L'harmonie arbitre-conseil constitue le terrain le plus fécond pour le développement et le succès de l'arbitrage commercial international. Il est, heureusement, la règle que bien peu d'exceptions confirment."

Serge Lazareff

The present study concerns the procedurally central relations in an arbitration between the arbitrator, on the one side, and the litigants, in the meaning of both the litigating parties and their counsel, on the other side. Such relations are decisive for the smooth and efficient development of the arbitration proceedings, but they may also be tricky; a lot depends on the experience, culture and education of both sides. The rule is certainly harmony in such relations, but exceptions do exist and these are our subject, considered solely from the arbitrator's perspective and not the counsel's. Our whole approach is based on certain premises that we will attempt to specify as they have appeared and evolved progressively in arbitration rules, scholars' writings and arbitration practice (I). When the relations with the litigants, which are normally serene and productive, become exceptionally strained, the arbitrator is certainly obliged to control or police the proceedings and remedy or sanction certain reprehensible behaviours (II). The subtle question is whether an arbitrator may go as far as to disqualify or exclude counsel from the proceedings (III).

I. Specifying Premises

1. The Arbitrator has a Considerable Degree of Latitude in Conducting the Arbitration Proceedings

The arbitrator's specific obligation to conduct the proceedings, which derives from the arbitrator's contract (receptum arbitrii) between the litigating parties and the arbitrator, as thoroughly analyzed by Thomas Clay,1 is undisputed today and is enshrined in different arbitration rules. It implies a considerable degree of latitude on the part of the arbitrator, who should however respect cultural diversity while ensuring that due process is safeguarded and unnecessary delays and costs are avoided.2

The arbitrator has the obligation to rule on procedural issues on which parties disagree. This is unquestionable. The real question here is to what extent the arbitrator may impose on the parties certain procedural measures against the parties' agreement. The question concerns the manner of conducting the proceedings and not the applicable procedural rules, since the arbitrator certainly cannot disregard the procedural rules that are expressly agreed upon by the parties, which would endanger the validity of the award.3 And, interestingly enough, the parties' agreement on a procedural measure may more often than not be the agreement of their counsel, without the consent of the parties themselves and even against the latter's real interests. The challenge for the arbitrator is to find the right way to implement certain measures, by persuading the litigants of their reasonableness rather than by imposing them, and implement with certitude what Charles Jarrosson has stated and what has become an oft-cited reference: "the autonomy of the parties finds its limits in what constitutes the essence of the jurisdictional power."4

In practice, the different procedural means of conducting the proceedings are discussed and agreed between counsel and the arbitrator at an early casemanagement conference. Further procedural details are discussed and agreed between them at a later stage, before a hearing or at the occurrence of a nonanticipated event. Such direct communications for organizing the proceedings are well-known techniques and are extensively used in international arbitration proceedings.5 The trend is nowadays to render them official. This has already been done in the revised IBA Rules of Evidence (Art. 2)6 and will most probably be the case for the new ICC Arbitration Rules, which are presently at the final stage of revision.

It is already at the early case-management conference that a clash between a joint proposal of counsel regarding a procedural step and the arbitrator's views in this respect may appear. Depending on whether the arbitrator has really studied the Request and the Answer, so as to be able to perceive the needs of the case and judge on the reasonableness of the joint proposal, an open discussion with counsel and a different proposal by the arbitrator may hopefully dissolve the clash. In any event, having in mind flexibility as an omnipresent principle and the fact that all specific rules on the conduct of the proceedings are not definitive, the discussion will most probably lead to an agreement. Moreover, the attendance of clients' representatives7 at the case-management conferences may facilitate the scheduling of the different steps of the proceedings on a realistic basis; if not, it will permit parties' acknowledgement of the joint proposal of counsel, which seems ex hypothesi unreasonable to the arbitrator. In other words, the arbitrator's latitude in conducting the proceedings may already apply at the very early stage of their scheduling, during the case-management conference. This, however, will normally result in an agreement with the parties or in a determination by the arbitrator on points of disagreement between them. Though very helpful and promising, this early scheduling does not preclude various incidents that may arise during its implementation. It is especially with regard to such incidents that the existence of a considerable degree of latitude is to be discussed.

2. The Equivalence between Judge and Arbitrator

Moving on to a more theoretical premise, it is stressed that the identity between judge and arbitrator as far as their jurisdictional power per se is concerned is generally recognized. The doubt and debate concerns only the extent of the arbitrator's imperium. As demonstrated by Charles Jarrosson,8 the common distinction between imperium and jurisdictio is nonsensical, since the latter is part of the imperium lato sensu. Therefore, arbitrators cannot be held as lacking any imperium since the power to order certain acts is tightly related to jurisdictio and generally recognized. Arbitrators do order such acts or measures, like the production of a document, the appearance of a witness, the performance of an obligation, the appointment of a provisional administrator and so forth. Even the power of arbitrators to order judicial penalties (astreintes) as a punitive remedy with a view to ensuring compliance with their orders is accepted by some legislations and case law.9 What is certainly true is that arbitrators are deprived of coercive power and that the enforcement of any such orders requires the assistance of a national court. But regardless of such possible need of assistance, what is of interest here, in the present context of the relations between the arbitrator and the litigants, is the concept of the imperium mixtum only, as inherent to jurisdictio. This concept may justify an arbitrator's order aimed at ensuring the very mission entrusted to him by the parties, i.e. jurisdictio and its necessary attendants, the conduct of the proceedings in good faith and the integrity of the whole process.

Another concept that comes to mind is the contempt power of a judge under common law systems - similar powers of a judge under civil law systems also exist - which is deemed to go hand in hand with jurisdiction. how can the arbitrator, being deprived of any coercive power, react to acts by the parties - or actually by their counsel - of disobedience to the arbitrator's orders or misbehaviour during the hearing, acts that would constitute direct (in facie curiae) or indirect contempt under common law and give rise to the sanctions of fine or imprisonment? Sanctions of a different kind are actually available to the arbitrator with a view to indirectly compelling compliance with his orders or restoring the order at the hearing. A more difficult question is whether and under what circumstances the arbitrator should feel comfortable to have recourse to other than purely 'arbitral' sanctions of a severe nature without calling for the assistance of a national court or other authority.

3. Autonomy of the Arbitration Proceedings

When arbitration started becoming the normal means of resolving disputes arising out of international contracts, authorities were aspiring to its autonomy.10

This autonomy having now been acquired with the passage of time and the evolution of national legislations, institutional rules and international practice, as well as the change towards an arbitration-friendly attitude of national courts, the centre of discussions became the 'juridictionnalisation' and 'judiciarisation' of the arbitration proceedings.11 Be this as it may, the international legal context allows and supports the autonomy of the arbitration proceedings, in essence limiting the intervention of the national courts to a potential procedure of setting aside or of enforcement of the award, i.e. ex post facto when the arbitrator is functus officio. Seeking the assistance of the courts or of another authority with regard to an incident that occurred during the proceedings, assuming that such assistance is possible per se, is not thus logically evident for the arbitrator. A procedural incident of whatever kind is an 'internal affair', and the arbitrator, as the master of the arbitration proceedings, is obliged to find the appropriate means to internally resolve it. It is only in quite exceptional circumstances involving issues of criminal law that recourse to a national court might be envisaged (e.g. bribery of a witness, fake documents), but it is doubtful whether the arbitrator is the one who will make such a move rather than the injured party. In any event, extreme procedural incidents of criminal nature raise different questions and exceed the scope of the present study.

II. Policing the Proceedings

1. Counsel's Disobedience to the Established Procedures

The assumption is what normally happens in practice, i.e. that the specific rules to be applied to the proceedings have been discussed and agreed with the parties and/or decided by the arbitrator early enough, with a view to having an efficient, economical and fair process. A further assumption, in this case abnormal, is that counsel then disobey these rules without good reason, thus breaching their professional obligations as depicted in national codes of conduct for lawyers and reproduced in general terms in the IBA General Principles for the Legal Profession (adopted on 20 September 2006)12 the Code of Conduct for European Lawyers (CCBE - updated on 19 May 2006)13 or the hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals (issued on 27 September 2010 by the ILA Study Group on the Practice and Procedure of International Courts and Tribunals).14 This refers in fact to procedural good faith of counsel,15 who are not distinguished from their clients in this context. Disobedience to the rules may consist in noncompliance with procedural technicalities, such as those relating to the presentation of the bundles of the exhibits, the contents of the witness statements or the expert reports, but it also may consist in substantial manoeuvres like dilatory tactics of any kind, excessive requests for production of documents, repeated violations of timeframes or excessive and unjustified cross-examination.

The arbitrator's primary obligation within his general obligation to control the proceedings is obviously to impose a remedy for procedural technicalities and put a stop to manoeuvres that abusively disrupt the arbitration procedure as set up - and to do so firmly if necessary. Adjusting the words of Professor Pierre Lalive,16 we would say that the arbitrator should have the 'courage' "to move away from the fear of being disliked or from the desire of being liked by counsel", if the latter's behaviour is actually abusive and not due to a real impediment, ignorance or even insufficiency. Besides some serious consequences of such misbehaviour, i.e. that, depending on the circumstances of the particular case and the content of the infringed procedural rule, the arbitrator may exclude a means of evidence or draw negative inferences on the merits against the disobedient party, a purely 'arbitral' sanction for such behaviours does actually exist.

A long and constant arbitration practice reveals, through published awards, that arbitrators have used their discretion to allocate the arbitration costs - such discretion being affirmed in most institutional rules - in such a way as to punish procedural bad faith or, conversely, to reward the procedural good faith of the unsuccessful party by decreasing the costs awarded to the prevailing party. There are many examples of both categories17 in practice. This practice, already highlighted in many writings,18 has now been made official and highlighted in the Techniques for Controlling Time and Costs in Arbitration (paras. 25 and 85) and the new IBA Rules on the Taking of Evidence (Art. 9.7). Moreover, in a further effort to ensure compliance with the agreed or ordered procedures, it is suggested that the arbitrators inform the parties regarding such a possible sanction at an early stage (para. 25 of the Techniques).

The thought that may cross one's mind in the present context is that the sanction through the allocation of the costs punishes not counsel but the client, who may ignore or not approve of counsel's disobedience to the procedures. however, the clients, being the real litigants, have a contractual obligation under the arbitrator's contract to collaborate with the arbitrator and respect the agreed or ordered procedures. Since they have assigned all such obligations to their legal representatives by the specific retainer concerning the arbitration, they become legally responsible for any disobedience to such procedures by counsel. Moreover, as practice confirms and guidelines advise, the clients are supposed to have participated in the initial discussions on the procedures to be followed, and may also be assumed to know and follow the evolution of the proceedings even when they are not physically present at the hearings. This is thus a misplaced thought, a rather false question.

2. Counsel's Disrespect for the Arbitrator

Beyond situations of clear disobedience by counsel to the established procedures, incidents of what we would call disrespect for the arbitrator may arise, especially during the hearings. For instance, such disrespect might take the form of recording or taking pictures without permission, using BlackBerries or similar devices, forgetting to switch off mobile phones or - the ultimate disrespect - systematically interrupting and shouting or being aggressive towards opposing counsel or even the arbitrator. This holds true even when a personal attack on the arbitrator is arguably somewhat justified by an unreasonable order of the latter or an authoritarian or nonchalant attitude. Objecting with vigour to such arbitrator's acts, which is a duty of counsel, does not equate to violating ethics and openly disrespecting the arbitrator's role.

This kind of unconventional behaviour of counsel, which impairs the serene evolution of the hearings, if not the arbitration procedure per se, is intimately connected to counsel's personality, i.e. counsel's personal morality, education and culture rather than counsel's experience of arbitration proceedings. Conversely, it is precisely the arbitrator's experience that will determine his own reaction in order to pass off such awkward incidents, which is undoubtedly easier if such experience is accompanied by intelligence and a … sense of humour. The challenge for the arbitrator is to put right what was wrong or to resolve a conflict of personalities with counsel in his favour and move forward to his essential task: the orderly conduct of the proceedings. Incidents of disrespect are best neutralized and even forgotten, at least when they are not extreme. And it is more difficult to penalize them through the allocation of the arbitration costs, since the arbitrator may not feel as much at ease holding clients responsible for the character, education and temper of the legal representatives they have chosen.

3. Counsel's Insufficient Advocacy

One can say that there are four categories of counsel that appear in international commercial arbitration. First, the real specialists, including the big names, who change roles, appearing sometimes as arbitrators and sometimes as counsel. Second, counsel who, though initially trained in domestic litigation, have subsequently acquired a certain amount of experience in international arbitration. Third, young lawyers trained as international practitioners without first becoming national court practitioners, who may not yet have actual experience in practice but who are certainly knowledgeable in the field. Fourth, completely inexperienced counsel, ignoring the specificities of international arbitration and using practices of litigation before their national courts. If both the arbitrator and counsel belong to the international community of arbitration practitioners of the first category, harmony in the relations between them and efficiency of the proceedings are normally secured. The same result may be achieved with regard to the second and third category of counsel, if the arbitrator - assuming he is in all cases experienced - shows understanding and openness, while having at the same time a somewhat didactic approach to counsel's deficient or insufficient performance. The challenge is to deal with the real exception presently in international arbitration19 practice, namely counsel of the fourth category, i.e. counsel who lacks any skills of effective advocacy in international arbitration, counsel who makes long, unclear and vague submissions, presents confusing and irrelevant evidence, is uncooperative with the tribunal and opposing counsel, enters into protracted, argumentative and non-constructive correspondence with the other side and the arbitral tribunal, resorts to 'ambush' tactics, has serious difficulties in communicating in the language of the arbitration. What could or should the arbitrator do in extreme situations of such insufficiency of advocacy skills, where whatever effort to remedy them through a direct discussion or a procedural order is proven, or anticipated with certainty, to be useless?

The omnipresent in arbitration rules and national legislations principle and duty of the arbitrator to treat parties with fairness and equality is accompanied by the duty to give them a reasonable opportunity to present their case. The rule is undoubtedly that the opportunities must be equal as well.20 If counsel for one litigating party completely lacks any skills of effective advocacy, opportunities for the parties essentially become unequal, although this is actually due to the choice of legal representation by the litigating party rather than the conduct of the proceedings by the arbitrator. yet, as a consequence of his obligation to preserve due process, the arbitrator does have the freedom21 to take any initiative he deems appropriate in order to remedy extremely unbalanced proceedings due to a litigating party's unqualified legal representative. In these circumstances, such an initiative might be to contact the litigating party in question, with a communication to or in the presence of the other litigating party, with a view to explaining the unholy situation and inducing the replacement of counsel.22 The arbitrator's right to directly contact the litigating parties if he deems it appropriate is, in our opinion, a residual one. Arbitration is made for the litigating parties and not for their counsel.

III. Extreme Policing of the Proceedings: Exclusion of Counsel

There is undoubtedly a general rule that parties may choose the persons they deem fit as their legal representatives in all types and kinds of litigation. Suffice it to mention Article 7 of the IBA General Principles for the Legal Profession, which provides:

"Clients' freedom A lawyer shall respect the freedom of clients to be represented by the lawyer of their choice. unless prevented by professional rules or by law, a lawyer shall be free to take on or reject a case."

This rule may even be seen as elevated to a human right if we think of Article 6 of the European Convention on human Rights concerning the right to a fair trial, precisely paragraph 3(c) of this Article, which lays down the right of an individual "to defend himself in person or through legal assistance of his own choosing". And the arbitrator has undoubtedly an obligation, deriving from both the jurisdictional mission and the arbitrator's contract, to preserve the integrity of the proceedings without which a fair trial cannot be achieved.

The question here is whether the arbitrator's obligation to preserve the integrity of the proceedings may prevail over the parties' right to choose their counsel, thus granting the arbitrator the power to exclude counsel from the proceedings in circumstances where the latter's presence imperils the integrity of those proceedings. To our knowledge, there are four recent arbitral decisions affirming, with differentiating strength and conviction, this power of the arbitrator, three of which were issued in ICSID procedures. The trigger for these decisions was either an apprehension of partiality of the arbitrator caused by the appearance of new counsel in the proceedings or counsel's conflict of interest, due to a former client relationship, leading to disqualification.

1. Apprehension of Partiality of the Arbitrator Caused by the Appearance of New Counsel

Two ICSID decisions deal in extenso with this matter. The first case is a published arbitral tribunal's ruling of 6 May 2008 in the ICSID proceedings between Hrvatska Elektroprivreda, d.d. (the national power company of the Republic of Croatia - hEP) and the Republic of Slovenia,23 which has been subject to commentaries.24

In a few words, the circumstances that gave rise to this ruling were as follows. The arbitral tribunal had already been constituted two years earlier. Ten days before the hearing of 5 May 2008, Respondent sent the list of the persons who would attend the hearing, which included David Mildon QC, who was a door tenant at the same chambers (Essex Court Chambers, London) as the tribunal's president, David Williams QC. Claimant reacted immediately, seeking disclosure of different facts and intentions by Respondent and, especially, disclosure as to when Mr Mildon was retained and what role he was expected to play at the hearing. The president declared that he had never had any personal relationship with Mr Mildon. Respondent similarly declared that Mr Mildon had no professional or personal relationship with Mr Williams, but refused to disclose when Mr Mildon had been retained and what role he was expected to play at the hearing. Parties' argumentation focused on the application of Standards 3 and 7 of the IBA Rules on Conflicts of Interest and paragraph 3.3.2 of the Orange List on the membership of an arbitrator and counsel in the same barristers' chambers. yet both parties repeatedly affirmed that they did not wish the president to resign. At the hearing, Respondent finally disclosed that Mr Mildon had been approached in February 2008 and that it had taken the view that the matter of such common membership was not relevant to disclose. Claimant sought an order from the tribunal that the Respondent refrain from using the services of Mr Mildon.

The tribunal's ruling was that Mr David Mildon QC might not participate further as counsel in this case, after having particularly considered the following points. (i) The fact that although it has often been accepted that members of the same chambers acting as counsel appear before other fellow members acting as arbitrators, this practice is not universally understood. It was thus understandable that Claimant, to which the London Chambers system was wholly foreign, considered that Mr Mildon's participation in the proceedings would create "apprehensions of the appearance of impropriety" (para. 22). (ii) The fact that Respondent had committed three errors of judgement. First, its conscious decision not to inform the Claimant or the tribunal of Mr Mildon's involvement in the case; second, the tardiness of the Respondent's announcement of Mr Mildon's involvement; and, third, its subsequent insistent refusal to disclose the scope of Mr Mildon's involvement. These circumstances led the tribunal to conclude that there was a "substantial risk of a justifiable apprehension of partiality" (para. 32), which could only disappear either by the president's resignation (which neither party desired) or by the exclusion of Mr Mildon from the proceedings. The tribunal's choice of the second solution was based on the principle of immutability of properly constituted tribunals (Art. 56(1) of the ICSID Convention) and the consideration that Respondent was not entitled to subsequently amend the composition of its legal team in such a fashion as to imperil the tribunal's status or legitimacy.

It is important to quote the tribunal's concluding statement: "[The Tribunal] considers that, as a judicial formation governed by public international law, the Tribunal has an inherent power to take measures to preserve the integrity of its proceedings." And apparently the Tribunal adopted the existence of such power "independently of any statutory reference" (para. 33).

While the existence of an inherent power of the arbitrator to exclude counsel from the proceedings when the latter's presence imperils their integrity is thus affirmed by three prominent practitioners, who were the members of this arbitral tribunal,25 it remains to be seen whether this solution was indeed - or should be - guided only by public international law and to what extent national codes regulating lawyers' conduct may come into play. In the Hrvatska case under discussion, the tribunal explicitly took account of the ICSID system in its decision to exclude counsel, but also in its holding in passing that "it seems unacceptable for the solution to reside in the individual national bodies which regulate the work of professional service providers, because that might lead to inconsistent or indeed arbitrary outcomes depending on the attitudes of such bodies, or the content (or lack of relevant content) of their rules. It would moreover be disruptive to interrupt international cases to ascertain the position taken by such bodies" (para. 23). We will revert to these points after completing the overview of all these precedents.

The second ICSID decision on the power of a tribunal to exclude new counsel who by his appearance in the proceedings causes a risk of apprehension of partiality of the arbitrator, was issued on 14 January 2010 in the proceedings between The Rompetrol Group n.V. and Romania.26 The tribunal27 in this case (once again neither the tribunal itself nor any of its members were challenged) was much more reluctant than the tribunal in the Hrvatska case to accept the existence and especially the exercise of such a power. It denied Respondent's application to remove from the case the new counsel for Claimant28 and to forbid him from participating in it in any way.

The newcomer appeared in the proceedings of the Rompetrol case in July 2009. he was replacing a first counsel for Claimant, who had participated in the proceedings since their commencement in February 2007. For four years and until the end of 2008, this new counsel had been a member of the same law firm as the arbitrator appointed by the Claimant. In reply to Respondent's request for full disclosure, he denied the existence of any disclosure obligation or of any reasonable basis for inferring an infringement of the tribunal's independence. he then described what he referred to as the limited nature of his dealings with the arbitrator during the period he had spent at the same law firm. The exact relationship of counsel with the arbitrator is not apparent from the decision, but it is stated therein that the tribunal discussed in detail Claimant's application and all information put on the record by the letters of the parties and that the tribunal was unanimously of the view that these circumstances did not call for any disclosure on the part of the arbitrator. The tribunal, taking into account the ruling of the tribunal in the Hrvatska case with a nuanced critical approach, dealt with the matter in a three-tier analysis.

(i) The power to control a party's representation. The tribunal held that this was a weighty instrument, all the more so if such control ought to be exercised by excluding or overriding a party's own choice, and that, absent express provision in the legal texts, the only justification for the tribunal to award itself this power by extrapolation would be an overriding and undeniable need to safeguard the essential integrity of the entire arbitral process. A threat to such essential integrity would be the apprehension of potential bias on the part of the tribunal (underlined in the decision), leading to a possible advantage to one litigating party. In addition, the tribunal wondered whether a person acknowledged to have possessed the qualifications required of an arbitrator under Article 14(1) of the Convention at the time of appointment might be considered as having lost them because later in the proceedings the argument of the same litigating party was delivered through the mouth of a different counsel with whom he has had some form of prior association. On the other hand, the tribunal explicitly declared that it was "reluctant to lend encouragement to any practice over and above the accepted rules of professional conduct and ethics that might end up casting a blight over the investor's freedom to find the most appropriate person to represent it in promoting its claims within the ICSID system" (para. 22).

(ii) The extent of a tribunal's powers. This part of the decision does not really add anything to the discussion of the tribunal's power to forbid the participation of counsel in the case.

(iii) The circumstances of the case. After having declared in a conclusive way that "the Tribunal does not consider […] that it is called upon to decide definitively what the limits are of any power an ICSID tribunal might possess to exclude counsel, beyond its finding in paragraph 16 above that any such power as may exist would be one to be exercised only rarely, and in compelling circumstances" (para. 25), the tribunal did not give any further information as to the actual circumstances of the case. The conclusion was that the tribunal could not find anything in the association between counsel and the arbitrator "that might, on the Porter v. Magill standard of the uK house of Lords, raise 'a real possibility that the tribunal was biased', or that might provide a reasonable basis, in terms of Article 14 of the ICSID Convention and Article 6 of the Rules, for questioning the ability of the Tribunal or any of its Members to judge fairly or exercise independent judgment" (para. 26).

An attempt to compare these two ICSID decisions may advance our reflection:

• The similarity of the facts that generated these decisions bears noting. In the Hrvatska case, the arbitrator and counsel were members of the same chambers; in the Rompetrol case, they were until recently members of the same law firm. In both cases, we are before a situation falling within the scope of paragraphs 3.3.2 and 3.3.3 of the Orange List of the IBA Guidelines. This was not discussed at all by the tribunal in the Rompetrol case, although it derives from the restricted piece of factual information given in the decision that the association existed in parallel to the arbitration procedure for almost two years before counsel's resignation from the law firm and his appearance in the arbitration procedure.

• The concerned arbitrator in the Hrvatska case was the president of the tribunal, while in the Rompetrol case he was the arbitrator appointed by the Claimant. Did that make a difference in the eyes of the tribunal in the Rompetrol case for the assessment of the "possible apprehension of potential bias"? Most likely it did, not least in light of the underlining of the word 'tribunal' in the decision ("potential bias on the part of the tribunal").

• The most important difference in the reasoning of the two decisions is probably that the tribunal in the Hrvatska case was preoccupied by the appearance of partiality of the arbitrator in the eyes of the Claimant, while the tribunal in the Rompetrol case was only interested in whether there was a real possibility that the tribunal would be biased, without any reference to such appearance.

• Only the tribunal in the Hrvatska case referred to national bodies regulating the conduct of lawyers - albeit in general terms - with a view to excluding any application of such rules as unacceptable in the context of the ICSID proceedings. Conversely, the tribunal in the Rompetrol case attributed great importance to the investor's freedom to choose its legal representative and did not explain which "accepted rules of professional conduct and ethics" would be overstepped with a decision to exclude counsel.

The conclusion we would draw from the comparison of these two decisions is that both tribunals accepted, albeit with a different degree of conviction and 'courage', the existence of the arbitrator's power to exclude counsel with a view to safeguarding the integrity of the proceedings. The tribunal in the Hrvatska case affirmed the existence of an "inherent power" of the arbitrator in general. The tribunal in the Rompetrol case just assumed the existence of such a power and circumscribed it by speaking of "an overriding and undeniable need", "essential integrity of the entire arbitral process" and "compelling circumstances". In any event, this power per se is considered by both decisions despite the silence of the different legal texts and without any reference to national codes of lawyers' conduct. It is undeniable - and on this point we agree with the decision in the Rompetrol case - that this power may be exercised only exceptionally. On the other hand, it is difficult to set up concrete conditions and limits to this exercise, as everything depends on the specific circumstances of the particular case and the way the arbitrator assesses them from the indefinable perspective of an apparent or real risk of partiality. notwithstanding the fact that the Hrvatska decision appears to have been influenced, to a great extent, by the failure of the Claimant and its counsel to make proper disclosure in good time, we believe that this decision goes beyond a simple sanction relating to the obligation of the party and counsel to disclose factors that might create doubts regarding the arbitrator's impartiality.

2. Counsel's Conflict of interest due to a former Client relationship leading to disqualification

The second cause that may trigger the discussion of an arbitrator's power to exclude counsel is the existence of a conflict of interest involving the person of such counsel or his law firm. The typical situation would be that counsel for a party or his law firm has previously advised the opponent party and has thus acquired confidential information pertinent to the arbitration at hand, which could be misused providing an undue advantage to the present client/arbitration party. The person of the arbitrator is not concerned here, and there is no risk of stricto sensu partiality. The integrity of the proceedings is nevertheless seriously threatened, since a potential misuse of such information by counsel would create a situation of unequal opportunities for the parties to present their case and possibly lead to an unfair judgment. It is obviously for the opponent party/former client to request such an order29 for the exclusion of counsel by the arbitrator, if it can show the existence of relevant confidential information in the possession of counsel and a real risk of disclosure and misuse of such information to its prejudice in the arbitration proceedings.

However, practice reveals that such a request is not always addressed to the arbitrator but to a national court. One example is an English decision in Gus Consulting GmbH v. LeBoeuf Lamb Greene & MacRae30 of the London Court of Appeal, dated 26 May 2006, which confirmed the decision of the high Court of Justice, Queen's Bench Division, Commercial Court. After having regard to all the circumstances of the case and especially the strict undertakings offered to the court by the law firm, the first judge rejected the application by Gus Consulting Gmbh for an order restraining the law firm from acting, advising or otherwise assisting its opponent in a pending LCIA arbitration in London. The appeal from this decision was dismissed. It bears noting that there is no discussion at all in the decisions of the court's competence (seized under Section 44(2)(e) of the Arbitration Act 1996 on the granting of an interim injunction) - much less of a potential power of the arbitrator - to deal with this matter.

Several examples may be found in American case law,31 which has not been consistent in this matter. Although, in the 1980s, some decisions declined to interfere in the arbitration process in response to requests for disqualification of counsel based on alleged conflicts of interest, stating that "it is for the arbitrators to control their internal procedures, subject only to the very limited post-award remedies conferred by Section 10 of the [Federal Arbitration] Act",32 the situation changed with Bidermann Industries Licensing, Inc. v. Amvar N.V. of 26 October 1990.33 According to the new york Supreme Court "the regulation of attorneys, and determinations as to whether clients should be deprived of counsel of their choice as a result of professional responsibilities and ethical obligations, implicate fundamental public interests and policies which should be reserved for the courts and should not be subject to arbitration". This decision was affirmed by the appellate court and, despite the criticism it was subject to, subsequent American decisions followed this precedent that a request for disqualification of counsel is not arbitrable.

Conversely, the California Court of Appeal in Pour le Bebe, Inc. v. Guess?, Inc. of 15 October 2003,34 in sharp contrast to those precedents and the new york Supreme Court Appellate Division in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Benjamin of a few days later (23 October 2003),35 which continued to follow Bidermann, did approve of the trial court for having deferred the issue of disqualification of counsel to the arbitrators. The California Court of Appeal rejected the motion to vacate the award, which had denied the motion to disqualify for insufficient evidence, ruling that even if the conflict of interest existed, it would not fit within the definition of "other undue means" in section 1286.2(a) of the Code of Civil Procedure (under which a court is to vacate an arbitral award if "[t]he award was procured by corruption, fraud or other undue means"). yet, subsequent American decisions36 continued to affirm that "disqualification of an attorney for an alleged conflict of interest is a substantive matter for courts and not arbitrators".

Finally, very recently,37 and in the opposite direction once again, the Fifth Circuit reversed the district court's decision that had fined an attorney for allegedly failing to disclose her prior relationship with an arbitrator, by reference to the 'narrowly defined procedural powers' of the court under the FAA. It further noted, as the attorney's alleged misconduct was discovered after the arbitration ended, that the aggrieved party could, first, have asked the arbitral institution (AAA) to reopen the proceedings so that it could request sanctions from the arbitrator and, second, have filed a bar complaint against the attorney. It bears noting, though, that none of the encountered precedents concerns procedures of recognition and enforcement of an award on the basis of the new york Convention or of setting aside an international award.

We are not aware of similar case law in civil law countries. In any event, it is our belief that the arbitrator should be exclusively competent to take the exceptional measure of disqualifying counsel in view of the protection of the integrity of the arbitration proceedings. The intervention of a national court in this respect does not have a theoretical basis, since the question is not really one of assistance. The arbitrator is better situated to weighing the seriousness of the conflict of interest and its impact on the particular arbitration process against the fundamental right of a party to choose its counsel. Moreover, practically speaking, the intervention of a national court will cause delay to the arbitration proceedings and increase costs. Taking into account the position of national courts, to the limited extent known, the reappearance of this issue at the stage of a procedure of enforcement of the award or its setting aside cannot be precluded. however, it is not obvious on what ground the award might be challenged: the exceptional measure of disqualification of counsel does not raise any question of arbitrability, nor does such a measure render the award contrary per se to public policy. Quite the contrary, this is an extraordinary, ancillary procedural measure taken by the arbitrator in order to ensure equal and fair treatment of the parties, i.e. precisely in order to comply with transnational public policy and with his contractual obligations towards them in conducting the proceedings. This position is encouraged by two unpublished arbitral decisions that firmly accepted the arbitrator's power to disqualify counsel with a conflict of interest in circumstances really threatening the integrity of the proceedings.

The first one is again an ICSID decision, but one that was issued in annulment proceedings in September 2008.38 The committee dismissed Respondent's application because, after considering the facts surrounding the retainer of Claimant's counsel by his former client (and present opponent) in a concurrent ICC arbitration and his withdrawal from this representation a few days later, it concluded that Respondent had not advanced evidence that counsel had actually received confidential information that could potentially prejudice Respondent's interests in the ICSID annulment proceedings. The Committee conclusively observed on this point that: "The Committee cannot act in this regard simply on mere appearances since to prevent a party from having access to its chosen counsel cannot depend upon a nebulous foundation, but rather must flow from clear evidence of prejudice."

It is important in the present context to refer to two main points in the reasoning behind the decision: the power per se of an arbitrator to disqualify counsel and the possible involvement of codes of professional ethics in the decisional process.

As to the arbitrator's power, the committee held that this was a question of procedure to be decided in accordance with Article 44 of the ICSID Convention and on this basis considered that

"it has the power and duty to conduct the process before it in such a way that the parties are treated fairly and with equality and that at any stage of the proceedings each party is given the opportunity to present its case. This power and duty necessarily includes the power and obligation to make sure that generally recognized principles relating to conflict of interest and the protection of the confidentiality of information imparted by clients to their lawyers are complied with. Indeed, such principles are of fundamental importance to the fairness of the Committee's procedures, such that the Committee has the power and duty to ensure that there is no serious departure from them."

As to the involvement of codes of professional ethics, after considering the codes of the two bars of which counsel was a member as well as of the Code of Conduct for Lawyers issued by the Council of the Bars and Law Societies of the European union (CCBE), the Committee held:

"This material is valuable to the extent that it reveals common general principles which may guide the Committee. But none of it directly binds the Committee, as an international tribunal. Accordingly, the Committee's consideration of the matter is not, and should not be, based upon a nice reading of any particular code of professional ethics, applicable in any particular national jurisdiction. Such codes may vary in their detailed application. Rather, the Committee must consider what general principles are plainly indispensable for the fair conduct of the proceedings."

The second arbitral decision regarding the arbitrator's power to disqualify counsel was issued in an unCITRAL ad hoc procedure. The acts regarding the existence of a conflict of interest situation were established with certainty as the new co-counsel for Respondent (head of the litigation and arbitration department of the law firm he had newly joined) had previously acted for Claimant in the same arbitration as a member of the law firm retained by Claimant. Claimant reacted before both the arbitral tribunal and the president of the bar association of the counsel's nationality (being a bar member of the CCBE), looking for a statement of withdrawal from the file by counsel, by referring to counsel's national and European ethical and professional rules. Codes of ethics for lawyers thus necessarily entered into play. A specific question that further arose in this case was whether the whole new law firm of counsel should be disqualified to act as counsel for Respondent or only the specific counsel himself.

The decision of the tribunal was to strongly recommend the immediate voluntary withdrawal from this arbitration of counsel and to declare that, failing such withdrawal, it might have to issue a more formal order to the effect of excluding the law firm as counsel or co-counsel in this arbitration. Although the tribunal specifically referred to counsel's national by-law of the lawyer's profession - not the one of the place of arbitration or any other - and Article 3.2 of the CCBE,39 the acknowledgement of its power to exclude counsel was based on general considerations of the risk of violation of fundamental procedural rights and international public policy. In particular, after reminding that arbitrators do not have the power to pronounce any disciplinary sanctions against any lawyer appearing before them, the tribunal held:

"Arbitrators do, however, have the power - and the duty - to conduct the arbitrations in such a way that the parties are treated fairly and with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case (Art. 15 unCITRAL Rules). These powers and duties necessarily include the power and duty to make sure that generally recognised conflict of interest rules and principles be complied with because otherwise the parties would not be treated fairly and with equality and the principle of due process would be violated. Conflict of interest rules are of such fundamental importance to civilised societies in general and to concerned parties in particular that their noncompliance would amount to a violation of the parties' most fundamental procedural rights and to a violation of international public policy. Consequently, to the extent necessary to safeguard those fundamental procedural rights and the compliance with international public policy, arbitrators have the power to disallow certain lawyers or law firms who find themselves in conflict of interest situations, to act in a given case."

As regards the exclusion of the whole law firm, this decision was apparently pragmatically imposed in the circumstances, but the tribunal preferred to refer to the conduct rules for lawyers, quoted in the decision, which did not allow to avoid or cure conflict of interest situations with the creation of an 'ethical wall' ('Chinese wall').

IV. By Way of Conclusion

At the end of this study of the relations between the arbitrator and the litigants, it should be recalled that these relations were only examined to the extent they were tense or problematic due to the unprofessional or unethical behaviour of counsel. In other words, the subject matter concerned quite unusual and unique situations, which however cannot be precluded in practice. If they arise, the arbitrator will have to remedy them promptly, taking into account and weighing the circumstances with his experience and intelligence as a yardstick. nor can specific conditions and limits to the arbitrator's obligation to conduct the proceedings and confront such situations be set up. All efforts in this area hinge on the fundamental general principles of due process and fair trial.

The arbitrator's obligation to conduct the proceedings implies, first and foremost, a duty to control the proceedings from a practical perspective, in the sense of finding solutions for the smooth development of the various procedural steps and the creation of a serene atmosphere whenever those are threatened. In Section II on policing the proceedings, we tackled various unpleasant situations, such as counsel's disobedience to the established procedures, disrespect for the arbitrator and insufficient advocacy, in which the arbitrator will be obliged to play an uneasy and repelling role of a quasi-police officer or severe master trying to maintain order in the proceedings. Although the arbitrator may not have actually anticipated this role when accepting his appointment and jurisdictional mission, such a role may prove indispensable when it comes to exercising his mission, and the arbitrator should therefore be ready and willing to fulfil it.

In all the cases discussed in Section III, the drastic procedural measure of excluding counsel from the proceedings was discussed and/or ordered by the arbitrators under exceptional circumstances directly threatening the integrity of the arbitration process. In essence, all these cases involved a threat to the fair exercise of the arbitrator's jurisdictional mission, whether in the form of an apprehension of partiality of the arbitrator caused by the appearance of new counsel or in the form of a conflict of interest of counsel due to a former client relationship. To the extent, therefore, that the exclusion of counsel is deemed indispensable for the effective exercise of the arbitrator's jurisdictional mission, the existence of the arbitrator's power to issue such an order is justified as an inherent power tightly connected to jurisdictio or as exercise of imperium mixtum. As such, this power does not need any statutory reference but may be exercised directly by the arbitrator, which is what was actually done in all the above cases, but only after a thorough consideration of the situation. Based on the above, we hereby set forth the proposition that the parties' right to a fair trial takes precedence over the right to choose a legal representative.

Some further propositions regarding the exercise of this power, which appear to be supported by arbitration practice, may also be set forth:

• The arbitrator's power to exclude counsel exists regardless of the type of international arbitration concerned (i.e. commercial or investment), since it aims to protect the fundamental principles of the arbitration process, which apply to all types of international arbitration procedures.

• In practice, reference to any national or international professional conduct rules is useless. First, there is the problem of choosing the most appropriate rules - let alone the 'double deontology' problem - and the risk of conflicts between them, especially in conflict of interest situations.40 Second, they are of no help as very general and, in their generality, coincide as to the duty of lawyers to have due regard for the fair conduct of the proceedings. Third, they are of no real interest to arbitrators, since arbitrators cannot pronounce any disciplinary sanctions on the basis of such codes.

• In our opinion, this power does not undermine the enforceability of the award. It has no direct impact on the award per se and is wielded - if at all - to safeguard the fundamental rights of the litigating parties and comply with transnational public policy.

To return to the starting point of this article, however, it is important to emphasize that such clashes between arbitrators and litigants are indeed exceptional. harmony remains the rule in their relations, provided of course that the arbitrator is worthy of trust and respect and that the litigants are acting in good faith.

1
Thomas Clay, L'arbitre (Dalloz, 2001) para. 802 et seq. See, earlier, Philippe Fouchard, The Status of the Arbitrator, ICC International Court of Arbitration Bulletin, Special Supplement, ICC Publication no. 564 (1995).

2
For example, Articles 15 and 20 of the ICC Rules; Article 14 of the LCIA Rules; Article 17(1) of the revised unCITRAL Arbitration Rules (in force since 15 August 2010); Articles 3.10 and 4.10 of the IBA Rules on the Taking of Evidence. But see also Mathieu de Boisséson, 'new Tensions between Arbitrators and Parties in the Conduct of the Arbitral Procedure', Int. A.L.R. (2007) p. 177.

3
With respect to this distinction, see Philippe Pinsolle and Richard h. Kreindler, 'Les limites du rôle de la volonté des parties dans la conduite de l'instance arbitrale', Rev. Arb. (2003) p. 41.

4
"[L]a volonté des parties trouve sa limite dans ce qui fait l'essence du pouvoir juridictionnel", Charles Jarrosson, commentary on Paris Court of Appeals (1re Ch. C), 19 May 1998, Société Torno SpA c/ Société Kagumai Gumi Co. Ltd., Rev. Arb. (1999) p. 619. Regarding the procedural agreements of the parties, see also Dominique hascher, 'Principes et pratique de procédure dans l'arbitrage commercial international', Recueil des Cours de Académie de Droit International de la Haye, Tome 279 (1999) p. 110 et seq.

5
Reference is made to the success of Techniques for Controlling Time and Costs in Arbitration, Report from the ICC Commission on Arbitration, ICC Publication no. 843, which apply not only to ICC arbitrations.

6
Article 2 of the IBA Rules on the Taking of Evidence in International Arbitration reads: "Consultation on Evidentiary Issues 1. The Arbitral Tribunal shall consult the Parties at the earliest appropriate time in the proceedings and invite them to consult each other with a view to agreeing on an efficient, economical and fair process for the taking of evidence. 2. The consultation on evidentiary issues may address the scope, timing and manner of the taking of evidence, including: a. the preparation and submission of Witness Statements and Expert Reports; b. the taking of oral testimony at any Evidentiary hearing; c. the requirements, procedure and format applicable to the production of Documents; d. the level of confidentiality protection to be afforded to evidence in the arbitration; and e. the promotion of efficiency, economy and conservation of resources in connection with the taking of evidence. 3. The Arbitral Tribunal is encouraged to identify to the Parties, as soon as it considers it to be appropriate, any issues: a. that the Arbitral Tribunal may regard as relevant to the case and material to its outcome; and/or b. for which a preliminary determination may be appropriate."

7
See also Techniques, supra note 5, at para. 34.

8
Charles Jarrosson, 'Réflexions sur l'imperium', Études offertes à Pierre Bellet (Paris, Litec, 1991) p. 245.

9
Article 1709 bis of the Belgian Code of Judicial Procedure, Article 1056 of the netherlands Code of Civil Procedure. In contrast, Article 25, para. 3 of the Swedish law of 4 March 1999 explicitly deprives arbitrators of such a power. Paris Court of Appeal, 10 March 1995, Rev. Arb. (1996) p. 143, obs. y. Derains and RTD com. 1996, p. 659, obs. J.-Cl. Dubarry and E. Loquin, which held: "Le prononcé d'astreintes visant à assurer l'exécution de la sentence constitue un prolongement inhérent et nécessaire à la fonction de juger et ne caractérise pas un outrepassement de la mission des arbitres." Paris Court of Appeal, 7 October 2004, JDI (2005) p. 341, which held that the power to order judicial penalties was "an inherent and necessary extension of the jurisdictional function". On this question, see in general Alexis Mourre, 'Judicial Penalties and Specific Performance in International Arbitration', Dossier V: Interests, Auxiliary and Alternative Remedies, (ICC Institute of World Business Law, 2008).

10
See, as early as 1965, Philippe Fouchard, 'L'autonomie de l'arbitrage commercial international', Rev. Arb. (1965) p. 99; Philippe Fouchard, 'Où va l'arbitrage international?', Écrits; Droit de l'arbitrage. Droit du commerce international (Comité français de l'arbitrage, 2007) p. 394; Bruno Oppetit, Théorie de l'arbitrage (Puf, 1998) pp. 32 and 119; Julian D.M. Lew QC, 'Achieving the Dream: Autonomous Arbitration', 22(2) Arbitration International (2006) p. 179.

11
Terms first employed by Bruno Oppetit, supra note 10, at p. 117. The first one refers to the complication and burdening of the arbitration proceedings, while the second refers to the overlap of arbitral and judicial procedures.

12
IBA General Principles for the Legal Profession: "Article 2: honesty, integrity and fairness A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the Court, his or her colleagues and all those with whom he or she comes professionally into contact."

13
Code of Conduct for European Lawyers (CCBE): "Article 4.1: Rules of Conduct in Court A lawyer who appears, or takes part in a case, before a court or tribunal must comply with the rules of conduct applied before that court or tribunal. Article 4.2: Fair Conduct of Proceedings A lawyer must always have due regard for the fair conduct of proceedings."

14
The hague Principles: "Article 2.3: Professionalism Counsel shall discharge his or her professional duties with integrity, diligence, efficiency and with a view to avoiding unnecessary expense or delay."

15
In this respect, see V.V. Veeder, 'The lawyer's duty to arbitrate in good faith', The 2001 Goff Lecture, 18(4) Arbitration International (2002) p. 431.

16
Pierre Lalive, 'Du courage dans l'arbitrage international', Mélanges en l'honneur de François Knoepfler (helbing & Lichtenhahn, 2005) p. 157 ("d'écarter la peur de déplaire ou le désir de plaire").

17
As examples of the first category, see, for instance, ICC 7453/1994, Collection of ICC Arbitral Awards, IV, p. 94, especially p. 111, and YB Com. Arb. (1997) p. 107, especially p. 124; ICC 7661/1995, Collection of ICC Arbitral Awards, IV, p. 135, especially p. 149, and YB Com. Arb. (1997) p. 149, especially p. 163; ICC 8486/1996, Collection of ICC Arbitral Awards, IV, pp. 330 and 530, and YB Com. Arb. (1999) p. 172. See also ICSID Case no. ARB/03/16, Award, 2 October 2006, ADC v. Hungary, at paras. 538-539; ICSID Case no. ARB(AF)/06/2, Award, 17 September 2009, CNH v. Turkey, at paras. 158 and 177. As examples of the second category, see ICC 6363/1991, Collection of ICC Arbitral Awards, III, p. 108, especially p. 133, and ICC 9302/1998, YB Com. Arb. (2003) p. 54, especially p. 67.

18
Michael Bühler, 'Costs in ICC Arbitration: A Practitioner's View', The American Review: Essays in Honor of Hans Smit (1992) p. 116; Marc J. Goldstein, 'Some Thoughts About Costs in International Arbitration', 3(2) International Arbitration News (2003) p. 16; Micha Bühler, 'Awarding Costs in International Commercial Arbitration: An Overview', ASA Bulletin (2/2004) p. 249; Richard h. Kreindler, 'Final Ruling on Costs: Loser Pays All?', Best Practices in International Arbitration, ASA Special Series no. 26 (2006); Charles Prince and yves Stans, 'using Costs as a Case Management Tool in International Arbitration', ASA Bulletin (4/2007) p. 704.

19
In this respect, see the ASA Charter of Advocacy in International Commercial Arbitration of 6 February 2009 and the contributions during the ICCA Congress of May 2010 in Rio de Janeiro on 'Arbitration Advocacy in Changing Times'.

20
Expressis verbis in Article 19(2) of the SCC Institute Arbitration Rules.

21
In the sense of a duty of freedom of the arbitrators, see Thomas Clay, supra note 1, p. 622, referring to René David and Matthieu de Boisséson: "Mais son devoir de liberté va même plus loin car il est tenu, selon nous, de prendre toutes les initiatives utiles pour favoriser le bon déroulement de l'instance arbitrale."

22
At the April 2010 Colloquium of Arbitrators organised by the ICC Institute of World Business Law, Professor Pierre Lalive referred to a successful experience he had had in this context.

23
ICSID Case no. ARB/05/24, Hrvatska Elektroprivreda, d.d. v. Republic of Slovenia, available at: <http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRh&actionVal=show Doc&docId=DC950_En&caseId=C69>.

24
See especially David J. Branson, 'An ICSID Tribunal Applies Supranational Legal norms to Banish Counsel from the Proceedings', 25(4) Arbitration International (2009) p. 615.

25
Mr David A.R. Williams QC, the honourable Charles n. Brower and Mr Jan Paulsson.

26
ICSID Case no. ARB/06/3, The Rompetrol Group N.V. v. Romania, available at: <http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRh&actionVal=show Doc&docId=DC1370_En&caseId=C72>.

27
The members of this tribunal were Sir Franklin Berman KCMG, QC, Mr Donald Francis Donovan, Esq. and the honourable Marc Lalonde PC, OC, QC.

28
Mr Barton Legum.

29
The ex officio raising of this issue by the arbitrator should in practice be excluded with regard to this kind of conflict of interest of counsel. Conversely, in the framework of his own disclosure obligations, the arbitrator should raise the issue of apprehension of partiality at the appearance of new counsel with whom he might have a conflict of interest. Depending on the circumstances, this may result in the exclusion of counsel at the arbitrator's initiative.

30
See: <http://www.nadr.co.uk/articles/published/ArbLawReports/Gus%20v%20Leboeuf%2020 06.pdf>.

31
In this respect, see the comprehensive article by John L. Jacobus, Thomas Rohner and Andrew J. hefty, 'Conflicts of Interest Affecting Counsel in International Arbitrations', 20(8) Mealey's International Arbitration Report (August 2005).

32
See Wurttembergische Fire Insurance Co. v. Republic Insurance Co., no. 86 Civ. 2596- CSh, 1986 WL 7773 (S.D.n.y. July 9, 1986), followed by Cook Chocolate Co. v. Salomon, Inc., no. 87 CIV 5705 (RWS), 1988 WL 120464 (S.D.n.y. Oct. 28, 1988), which accepted, however, that intervention of the court might be allowed in "extraordinary circumstances" or "compelling necessity".

33
n.y.L.J., Oct. 26, 1990, at 23 (n.y. Sup. Ct.).

34
See: <http://www.lawlink.com/research/CaseLevel3/80646>.

35
1.A.D.3d 39, 44 766 n.y.S.2d 1 (n.y. App. Div. 2003).

36
See, for example, the Opinion and Order in Munich Reinsurance America, Inc., f/k/a American Reinsurance Company v. Ace Property & Casualty Insurance Co., 500 F.Supp. 2d 272 (S.D.n.y. 2007).

37
Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2010 WL 3530013 (5th Cir. Sep. 13, 2010), available at: <http://www.practicallaw.com/3-503-4710>.

38
ICSID Case no. ARB/03/25, Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines, Annulment Proceeding, Decision on Application for Disqualification of Counsel, 18 September 2008 (unpublished decision). It bears noting that in an obiter dictum approach the Committee referred to the narrower scope of the annulment proceedings - application of Article 52 of the Convention - than the proceedings before an ICSID arbitral tribunal. This might imply that a conflict of interest situation in annulment proceedings is to be granted less weight since confidential information normally concerns facts, which do not directly enter into play in these proceedings.

39
Code of Conduct for European Lawyers (CCBE): "Article 3.2: Conflict of Interest 3.2.1 A lawyer may not advise, represent or act on behalf of two or more clients in the same matter if there is a conflict, or a significant risk of a conflict, between the interests of those clients. 3.2.2 A lawyer must cease to act for both or all of the clients concerned when a conflict of interests arises between those clients and also whenever there is a risk of a breach of confidence or where the lawyer's independence may be impaired. 3.2.3 A lawyer must also refrain from acting for a new client if there is a risk of breach of a confidence entrusted to the lawyer by a former client or if the knowledge which the lawyer possesses of the affairs of the former client would give an undue advantage to the new client. 3.2.4 Where lawyers are practicing in association, paragraphs 3.2.1 to 3.2.3 above shall apply to the association and all its members."

40
Matthew Gearing extensively presented these issues at the ASA Annual Conference on Advocacy in International Commercial Arbitration on 29 January 2010. See also Catherine A. Rogers, 'The Ethics of Advocacy in International Arbitration', 25 February 2010, electronic copy available at: <http://ssrn.com/abstract=1559012>.