SHOULD ARBITRATORS HAVE THE POWER TO DISQUALIFY OR SANCTION ATTORNEYS (NOT PARTIES)? POTENTIAL ADVANTAGES AND PROBLEMS WITH SUCH A POWER

Abstract

Questions abound in International Arbitration (IA), one of which is whether arbitrators have the powers to disqualify or to sanction attorney-representatives appearing before them in arbitral proceedings. The uncertainty of the response to this question is exacerbated by the lack of a robust structure in IA for the effective regulation and assessment of attorneys’ conduct.1 Consequently, the subject of arbitrators’ power to disqualify and sanction attorneys in IA has been a burgeoning conversation in the past few years. Commentators share bifurcated views on whether arbitrators should have the powers to disqualify and to sanction attorneys in IA. While some argue that arbitrators do not have such powers,2 others argue otherwise. Rogers succinctly captures this dilemma by noting that jurisdictional and doctrinal questions abound as to whether arbitrators have the powers to sanction or regulate attorneys.3 Hence, the issue of arbitrators’ powers to disqualify and to sanction attorneys in IA is the crux of this paper. In confronting this issue, this paper will answer the polarised question of whether arbitrators should have the powers to disqualify or to sanction attorneys in IA. The attempt to answer this question is important in view of the current uncertainty concerning the existence and extent of the use of the power. In answering the question, this paper will be divided into three main sections. Section one introduces the subject and argues that arbitrators should have the power to disqualify and to sanction attorneys. It also analyses the possible sources of the power. In demonstrating the advantages of arbitrators having this power, section two argues among others that it would prevent the sanctioning of innocent parties for their attorneys’ misconduct. It further evaluates the potential problems with such powers. Among others, it argues that arbitrators may choose to use this power partially or arbitrarily against unpopular attorneys. This paper concludes by suggesting that pending the promulgation of a transnational ethical regulation in IA, various arbitral institutions should amend and embed these powers in their rules.