The
arbitral institution has recently experienced such a degree of turmoil that it
seems useful to attempt to theorize on the role and scope of ethics in
arbitration. As opposed to the usual deontological approach which appears to
reduce ethics to a technical discipline involving the identification of
professional standards, we would prefer a teleological approach where ethics
are not merely limited to a body of professional rules but aim to identify the
fundamental values that should dictate the conduct of those participating in
arbitration proceedings. The deontological approach to ethics based on the
Anglo-Saxon model has favored the emergence of a soft law system which, while
it might seem invasive, nevertheless has the advantage of helping with the decision
making process. The teleological approach considers the professional conscience
of those involved in arbitration as the source of ethics, which must dictate
values adapted to their respective, intrinsic purpose. The deontological
approach leads to conflicts of rules which need to be resolved whereas
jurisdictional virtues constitute ethics in accordance with the teleological
approach (distance, proximity, integrity and reasonableness), and by their very
essence, are intended to be universal. These virtues temper one another and
interact to inspire the best solution for the arbitrator. A study of ethics in
arbitration also supposes that one consider the penalties. A breach of ethics
is likely to incur liability for the person responsible for such violation and
such a breach may also result in professional disciplinary sanctions. The issue
is one of whether arbitrators also have such disciplinary powers. Finally, any
damage to reputation, which in the end may prove to be the best sanction for
unacceptable conduct, should not be neglected.