Fraport v. Philippines, ICSID, and Counsel Disqualification: The Power and the Praxis

Catherine A. Rogers, Professor of Law, Paul and Marjorie Price Faculty Scholar, and Professor of Ethics, Regulation, and The Rule of Law at Pennsylvania State University’s Dickinson School of Law, and Alex Wiker, Post-Graduate Fellow in International Arbitration at Pennsylvania State University, have published “Fraport v. Philippines, ICSID, and Counsel Disqualification: The Power and the Praxis,” Journal of World Investment and Trade, 2014.  In their paper, the authors discuss the role of international arbitral tribunals in assessing and enforcing ethical obligations imposed on attorneys.

Here is the abstract:

An important 2008 ICSID ad hoc Committee ruling on disqualification of counsel has recently been published. The decision was rendered in the Fraport v. Philippines dispute. It was issued in the shadow of (but without reference to) HEP v. Slovenia. The Fraport decision arrives in the midst of a larger, ongoing debate in the international arbitration community generally about arbitral tribunals’ role in assessing attorney conduct and tribunal power to impose consequences for alleged misconduct.

Earlier installments in the debate over counsel conduct focused almost exclusively on conflicts of interest between attorneys and the tribunal. Fraport represents an important contribution to the debate because it contemplates counsel conflicts of interest with parties. These types of conflicts, and allegations of counsel misconduct more generally, are increasingly common not only in investment arbitration, but also in international commercial arbitration cases.

This essay explores, through the Fraport decision and other related cases tribunals’ exercise of such power, analysis about the sources of such power, and the need for more deliberative efforts to clarify both the substance of the ethical obligations of counsel and the role of arbitral tribunals in enforcing such obligations.

This and other academic papers written by Professor Rogers and Mr. Wiker may be downloaded without charge from the Social Science Research Network.

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