‘Who cares as long as we win?’ – Ethics in International Arbitration

This highly relevant session was moderated by Velimir Zivkovic, Niamh Leinwather (VIAC), alongside Michail Risvas, and Miljana Bigovic, who guided the conversation, drew out audience perspectives, and pressure-tested how ethical “red lines” shift across legal cultures and institutional settings. They tackled the uncomfortable truth behind the title question: advocacy in arbitration is meant to be robust — but arbitration only works if it is underpinned by integrity, fairness, and trust. Bigovic framed ethics as a daily reality for counsel, even when it is rarely named explicitly, and highlighted the built-in tension between duties to the client and duties to the tribunal (and, more broadly, the system).

Why “ethics” is so hard to pin down in arbitration

Bigovic’s central point was that “ethics” in international arbitration is not a single, universally agreed-upon rulebook. What counts as proper conduct can vary across jurisdictions, bars, and legal traditions, and even within one case — especially where counsel are admitted to multiple bars with potentially conflicting obligations. She noted that this creates uncertainty (and, at times, inequality of arms) because behaviour that is acceptable in one tradition may be unacceptable in another.

The current toolkit: soft law, institutions, and lived practice

Bigovic was clear: there is no single binding global code governing counsel conduct in arbitration. The closest widely cited attempt at a shared framework is the IBA Guidelines on Party Representation (2013), developed to respond to precisely this uncertainty. They address practical pressure points such as communications with arbitrators, evidence, document production, and witness preparation, but they remain non-binding unless adopted by the parties or applied by the tribunal.

She also pointed to institutional approaches as a second “layer”. The LCIA was discussed as a leading example, having incorporated guidance for authorised party representatives (including potential sanctions for misconduct) in an annex to its rules.

The behavioural fault-lines: where things tend to go wrong

From counsel’s perspective, Bigovic identified a “core” set of ethical duties that are widely recognised in practice, even if their contours can be contested:

Honesty and integrity: not knowingly making false statements or submitting evidence known to be misleading (simple in theory; thorny in cross-jurisdictional practice).
Strong advocacy without process abuse: the line between persuasive advocacy and obstruction can be thin — especially around delay, overreach and tactical manoeuvring.
No ex parte communications with the tribunal about the case: broadly accepted, and tied directly to procedural fairness.
Managing client pressure: counsel may be pushed to “do whatever it takes”, but must know when to say no.

She used “gorilla tactics” as shorthand for behaviour exploiting procedural gaps to delay or disrupt proceedings (e.g., abusive document requests, late filings, strategic challenges). Tribunals can respond via adverse inferences and cost consequences. Still, Bigovic noted a practical frustration: meaningful cost penalties usually come at the end, not when the damage is being done mid-proceedings.

The institutional perspective: “guardian of the process”, but cautious about overregulation

Leinwather explained that the Vienna Rules at VIAC do not contain LCIA-style express ethics provisions, in part due to concerns about overregulation or confusion, given the already complex patchwork of applicable regimes.

Where institutions do become directly engaged, she highlighted the arbitrator confirmation stage: if an institution becomes aware of undisclosed circumstances, VIAC’s approach is transparency and direct communication — effectively requiring disclosure as a condition of confirmation. Post-constitution, she emphasised the role of a “heavy-handed” tribunal willing to set clear procedural expectations and apply sanctions (including cost consequences) when conduct crosses the line.

The tribunal’s dilemma: the power to act, and the hesitation to punish parties for counsel

An arbitrator in the audience described how difficult “ethical enforcement” can feel in practice: tribunals may strongly dislike boundary-pushing behaviour, but translating that into enforceable consequences is not always straightforward — particularly where sanctions may end up penalising parties for counsel’s conduct.

Rule of law as a missing “north star”?

Zivkovic raised whether a shared commitment to “rule of law” (as a constitutional principle, as discussed in a UK House of Lords report) might make it easier to converge on global ethical standards.

Risvas responded by pointing to the conceptual problem: in many continental traditions, “rule of law” is linguistically and conceptually tied to the state, and international arbitration operates in a fragmented, multi-jurisdictional landscape without a global “superstate”. He suggested that without agreement on what arbitration is (international/transnational/state-centric), uniform rules will remain elusive.

He also offered a practical counterweight: in his experience, the tribunal remains the “ultimate gatekeeper” against excesses. He shared an LCIA hearing anecdote where aggressive accusations of “misrepresentation” were quickly neutralised by the tribunal president, reframing the dispute as a matter of legal interpretation rather than misconduct.

Where the group landed: harmonise carefully, but don’t pretend a perfect code is around the corner

Despite the title’s provocation, the discussion was notably pragmatic. Bigovic and Leinwather both cautioned against a universal code, arguing the system generally works because shared professional norms and reputational incentives already exert pressure (arbitration remains a small community).

Still, one participant argued that well-designed, practical ethical rules could gain traction in the way the IBA conflict guidelines have — especially if they made tribunal enforcement easier.