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

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.