Carrie Menkel-Meadow, University of California, Irvine law School (US); Mitt Regan, Georgetown Law Center (US) (Moderator); and Christian Wolf, Faculty of Law, Leibniz University Hannover (Germany)

Carrie Menkel-Meadow: Are International Ethics Possible In Transnational Dispute Resolution-Mediation, Arbitration, Etc.

I have been working on promulgation of ethical standards and rules in transnational dispute resolution (mediation, arbitration and peace facilitation) for years. My paper would explore whether it is possible to draft trans-systemic ethical principles, rules and enforcement mechanisms. See my review of Catherine Rogers' Ethics in International Arbitration, soon to appear in Geo. J. Leg. Ethics and CMM, Whyand How to Study Transnational law, 1 UC Irvine L. Rev. 97 (2011) and my work as Chair of CPR-Georgetown Commission on Ethics and Standards in ADR for elaboration of issues of legal cultural differences in creating ethics standards with different procedural and substantive traditions in civil, common law and hybrid systems. Will draw on my work in over 20 counties.

Mitt Regan: Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights

Most initiatives aimed at increasing business responsibility to respect human rights consist of nonbinding standards that have few formal legal consequences.   The business duty to respect human rights generally is expressed in international instruments or voluntary codes of conduct that are legally unenforceable. Furthermore, the rights in question typically are expressed in very broad terms, so that their meaning may vary considerably in different situations.  The business duty to respect human rights thus differs from conventional legal obligations on which lawyers typically advise clients.  In addition, employees and consultants who focus on corporate social responsibility historically have played the lead role in addressing the social impact of business operations. What, if any, role does this leave for lawyers with respect to the business duty to respect human rights?

Our research suggests that lawyers generally are in the early stages of formulating answers to this question.  The legally unenforceable nature of most human rights obligations can make some lawyers reluctant to advise on what they and their clients consider “soft law.” Those lawyers more experienced with soft law in other areas are more comfortable elaborating on how nonbinding public expectations for business clients can affect the perception of their legitimacy.  In addition, focusing on potential ancillary legal risks of human rights violations, as well as on broader concerns about enterprise risk, thus far has been especially effective in leading business clients to take human rights issues seriously.  

Finally, emphasizing the extent to which other companies in the same industry are sensitive to human rights concerns can lead to greater willingness to address the human rights impacts of a company’s operations.  The growing attention to business and human rights by public and private actors, as well as by bar associations, presents an opportunity for business lawyers to determine how to incorporate an understanding of public obligations in private practice in the process of constructing a professional identity. 

Christian Wolf: Free Legal Profession vs Ethics in International Arbitration?

In recent years the devolvement of council behavior in international arbitration has been described as a devolvement from an invisible college of distinguished Gentleman and Ladies to an ethical no-man´s land (Rogers). The behavior of some arbitrators has been referred to as guerilla tactics. More cautiously worded, it is not disputable that different ethical standards are applicable in different jurisdictions worldwide. There is still neither a uniform code of ethics nor conflict of law rules in the field of legal ethics. Organizations like the IBA and arbitration institutions like the LCIA tried to fill this gap. Especially the LCIA in the new 2014 Rules empowered the tribunal to sanction arbitrators for their misbehavior (Rule 18.6).

In the 19th Century the German lawyers fought for the freedom of their profession. The demand no longer to be under the disciplinary authority of the court, especially the court hearing the case, was predominant. Firstly, the paper will address the question how the new established disciplinary authority of the tribunal is consistent with the fundamental understanding of a free advocacy as developed in Germany.

Since the Bastille decisions of the German Federal Constitutional Court it is clear that only the legislator has the authority to regulate professional conduct. Secondly, the paper will address, whether it is possible that an arbitration Institute like the LCIA or the IBA enact binding rules of professional conduct.

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