Index of Content

Arbitrators and Advocates
Barristers Chambers - Conflict of Interest

In the conduct of arbitration it is almost universally accepted that arbitrators should be and should be seen to be independent of the parties. One of the current questions in this context is whether an arbitrator can be drawn from the same set of barristers chambers as the advocate for the parties.

In an international context the position of barristers is something of anomaly. They are predominantly found in common law jurisdictions, where the structure of the legal system historically drew a distinction between those entitled to appear before courts (barristers) and those engaged to represent the parties (solicitors). Despite the blurring of the distinction between barristers and solicitors in recent years, the approach to the question of conflict has remained largely unchanged.

In the case of a solicitor or indeed all other professionals it would be unthinkable to suggest that an individual could act as arbitrator in a reference where one of his colleagues was acting for a party. By contrast barristers have maintained that no conflict arises in circumstances where one member of chambers is the advocate for one party and another member is an arbitrator in the reference. This dichotomy of treatment is often difficult to explain to parties to an arbitration, particularly those coming from jurisdictions which do not operate a dual structure. The justification for the distinction is that barristers are sole practitioners. Whilst the practice of each group of barristers, known as chambers, may differ, barristers will generally be remunerated by reference to their own personal income, whilst making a contribution to the common overheads. In England and to a lesser extent other similar jurisdictions the role of chambers is evolving. There is a growing willingness of chambers to operate collectively in terms of marketing, the recruitment and training of pupils (trainee) barristers and the sharing of common resources including libraries and support staff.

Against this background an arbitral tribunal in Hrvatska Elektroprivreda, d. d. v The Republic of Slovenia, a dispute before the International Centre for Settlement of Investment Disputes ("ICSIO") was called upon to consider whether the involvement of a barrister gave rise to an "appearance of impropriety" where a member of his chambers was one of the arbitrators. The arbitral tribunal consisted of three eminent arbitrators, all of whom were associated with English barristers chambers or English law firms. It can therefore be assumed that they were familiar with the current practice of barristers' chambers. On the particular facts the tribunal concluded unanimously that it was not appropriate for the barrister to appear before it in the circumstances.

In reaching this conclusion the tribunal made reference to the elaborate website of the chambers concerned, noting its use of collective terms regarding the members of the chambers as a whole. It was accepted that there was no suggestion of actual impropriety on the part of either the arbitrator or the advocate. Indeed both the arbitrator and advocate stated that they had no personal relationship and that it was perhaps a year since they had last spoken to each other. The decision was based on an apprehension of the appearance of impropriety, rather than any actual impropriety. The tribunal stated that it did not believe that there was a "hard-and-fast rule" that barristers from the same chambers are always precluded from being involved as advocate and arbitrator in the same case. In their opinion, justifiability of an apprehension of partiality depended on the relevant circumstances. Factors which weighed in the particular case were that the London chamber system was wholly foreign to the objecting party, second the party had not informed the tribunal or other party of the involvement of the barrister at the earliest time possible and thirdly they had refused to disclose the scope of the barrister's involvement. It was suggested that the latter two factors had created an atmosphere of apprehension and mistrust. The first factor is remarkable to the extent that the party concerned was advised by experienced international counsel, who can reasonably be supposed to have been familiar with the chambers system even if their client was not. The second and third points although less remarkable were perhaps given more weight than they deserved, given that the identity of counsel is often not determined until relatively close to a hearing even if that counsel has given advice at an earlier stage (not to mention the reluctance of parties to be forthcoming) .

The determination of this tribunal, as with the determinations of any individual arbitral tribunal does not bind other tribunals. However, this determination will revive the debate as to whether it is appropriate for barristers from the same chambers to act as advocate and arbitrator. It may well be said that the peculiar nature of ICSIO arbitrations, involving disputes with nation states, is a distinguished factor. However, the principles discussed would appear to be of common application.

Lovells, Asia Projects (Construction & Engineering) Newsletter
May 09

Back to top