THE AUTHORS:
Giulia Bartoletti, Legal Publications Officer at Jus Mundi
Mohammad Hajj, Legal Publications Intern at Jus Mundi
The first issue of the third volume of the Jus Mundi Arbitration Review (“JMAR”) is devoted to the memory of Professor Emmanuel Gaillard (1952–2021), one of the most influential architects of modern international arbitration.
Published under the title A Day of Remembrance of Emmanuel Gaillard in Brazil: Ethics in International Arbitration, the issue brings together contributions presented during the Day of Remembrance organised by Gaillard Banifatemi Shelbaya Disputes on 14 May 2025 at the Copacabana Palace in Rio de Janeiro. More than a tribute, it offers a timely reflection on the ethical foundations of international arbitration through the lens of one of its foremost thinkers.
Brazil was a particularly fitting venue for this commemoration. As Professor and Guest Editor Yas Banifatemi explains in her introduction, it was at the 6th CBAr Congress in Salvador in 2006, before the Brazilian arbitration community, that Gaillard first publicly presented his celebrated theory of the three “representations” of international arbitration. Later developed in his Hague Academy lectures and his seminal Legal Theory of International Arbitration, that framework fundamentally reshaped how scholars and practitioners understand the relationship between arbitration and national legal systems. The French Court of Cassation’s landmark Putrabali decision, rendered shortly afterwards, would further reinforce this transnational vision by recognising that an international arbitral award is not anchored in any single national legal order.
The issue’s focus on ethics is equally significant. For Gaillard, arbitration derived its legitimacy not merely from party consent, procedural efficiency or the enforceability of awards, but from the ethical conduct of everyone participating in the arbitral process—arbitrators, counsel, parties, experts, institutions and scholars alike. Edited by Professors Loukas Mistelis and Kun Fan, with Professor Yas Banifatemi serving as Guest Editor, the volume explores how ethical considerations permeate every stage of arbitration, from jurisdiction and party conduct to decision-making, expert evidence and the drafting of awards. Collectively, the contributions demonstrate that ethics is not peripheral to arbitration’s legitimacy, but one of the essential conditions for its continued authority as a transnational system of justice.
Emmanuel Gaillard’s Legacy for the Architecture of International Arbitration and His Influence in Brazil
The opening contribution, by José Antonio Fichtner and Rodrigo Salton, revisits Gaillard’s intellectual architecture and its particular influence in Brazil. Their article demonstrates that Gaillard’s work was not merely theoretical. His writings offered a framework through which practitioners, courts, and scholars could understand arbitration as a system with its own logic, norms, and responsibilities.
At the heart of the article lies Gaillard’s celebrated theory of the three “representations” of international arbitration, first presented publicly in Salvador in 2006 and later crystallised in his 2010 Legal Theory of International Arbitration.
The authors revisit the three models—the monolocal, Westphalian, and transnational representations—which respectively conceive arbitration as deriving its legitimacy from the law of the seat, from the collective recognition of national legal systems, or from an autonomous transnational legal order. Although each model offers a different explanation of arbitral authority, the authors show why Gaillard ultimately embraced the transnational representation as the most convincing account of modern international arbitration.
This transnational conception carries important ethical consequences. If arbitration is more than a private mechanism attached to a single national system, then its actors are not merely serving their clients, appointing parties, or domestic professional rules. Ethics therefore becomes an integral feature of arbitration’s institutional architecture, shaping not only the conduct of arbitrators but also that of counsel, parties, experts, and all other participants in the arbitral process.
Fichtner and Salton also place this theory within the Brazilian context. Brazil’s modern arbitration regime, shaped by the 1996 Arbitration Act and later confirmed by the Supreme Federal Court, created fertile ground for a more sophisticated understanding of arbitration’s role. Gaillard’s work helped Brazilian practitioners and courts situate arbitration not as an exception to state justice, but as a legitimate and autonomous form of dispute resolution. The article, therefore, shows how theory and practice can reinforce one another: conceptual clarity can help a legal culture become more arbitration-friendly, while an evolving legal culture can give theory practical effect.
Abuse of Process as a Guardian of Arbitral Legitimacy
If Fichtner and Salton explore the structure of Gaillard’s thought, Sergio Mannheimer focuses on one of its most powerful practical applications: the doctrine of abuse of process. This doctrine, developed by Gaillard in scholarship and advocacy, is presented as a guardian of arbitral legitimacy.
Mannheimer explains that the doctrine rests on three complementary foundations: good faith as a structural principle governing the exercise of procedural rights; the integrity of arbitral jurisdiction, which prevents parties from manufacturing jurisdiction through artificial means; and a teleological interpretation of procedural rights, requiring procedural mechanisms to be exercised consistently with their underlying purpose rather than as tactical instruments. Together, these principles enable tribunals to look beyond formal compliance and assess whether procedural rights are being exercised in a manner consistent with arbitration’s broader objectives.
The article applies this framework to three recurring forms of abusive conduct. The first is treaty shopping and corporate restructuring, particularly where an investor restructures its corporate nationality after a dispute has become foreseeable in order to gain access to investment treaty protection. Cases such as Phoenix Action v. Czech Republic illustrate why tribunals have become increasingly attentive to the timing and purpose of such restructurings.
The second category is the multiplication of proceedings and parallel claims. Corporate groups may attempt to bring overlapping claims through different entities, under different treaties, or before different fora. The risk is not merely inefficiency. It is the possibility of inconsistent outcomes, double recovery, and undue pressure on respondent states. Orascom v. Algeria, a case in which Gaillard represented Algeria, is a key example of how tribunals can respond to cascading claims brought within a corporate structure.
The third category is the misuse of arbitral procedures for collateral purposes, such as delaying enforcement, exerting political pressure, or obtaining access to information.
What makes this contribution particularly compelling is its insistence that abuse of process is not simply a procedural objection, but a mechanism for preserving arbitration’s legitimacy. Tribunals are invited to look beyond the formal exercise of procedural rights and assess whether their use remains consistent with the function they are intended to serve within the arbitral system. In doing so, Mannheimer demonstrates how Gaillard’s transnational vision continues to shape contemporary arbitral practice by providing tribunals with principled tools to safeguard both jurisdiction and procedural integrity.
Counsel Ethics and the Absence of an International Bar
The issue then turns to the ethical conduct of counsel and parties. Natália Lamas examines one of arbitration’s most persistent structural problems: the absence of a universal international bar. While arbitrators are increasingly subject to elaborate standards on independence, impartiality, disclosure, and challenge, counsel remain primarily governed by domestic professional rules. In international arbitration, this can produce serious asymmetries. Lawyers from different jurisdictions may be subject to different rules on witness preparation, document production, confidentiality, conflicts, or communications with arbitrators.
Lamas does not overstate the problem. She recognizes that the absence of a single deontological authority does not mean that arbitration is lawless. Several instruments have attempted to create common standards, including the IBA Guidelines on Party Representation in International Arbitration, the LCIA Rules’ Annex on counsel conduct, the ICCA Guidelines on Standards of Practice, and other soft-law initiatives. These instruments provide a shared vocabulary and can be incorporated by agreement or applied through tribunal authority.
Yet their limitations remain evident. Soft law often depends on party consent, institutional rules, or the willingness of tribunals to intervene. Cases involving counsel conflicts or alleged misconduct have produced divergent results, even where similar concerns were at stake. Some tribunals have been reluctant to police domestic professional obligations, while others have taken more interventionist approaches, including ordering the removal of counsel in exceptional circumstances.
The difficult question is whether a mandatory universal code would solve the problem or create new ones. A rigid code might promote consistency, but it could also encourage tactical objections and satellite disputes. Lamas’s contribution is persuasive because it resists easy answers. The absence of an international bar is troubling, but the creation of one would raise its own legitimacy, enforcement, and strategic-use concerns.
Corruption and the Limits of Arbitral Tolerance
João Bosco Lee and Eduardo Follador Scremin address corruption in international commercial arbitration, another subject closely connected to Gaillard’s concern for arbitral legitimacy. Corruption presents a particular challenge because it is usually concealed. Direct evidence is rare. The conduct may involve intermediaries, sham consulting agreements, inflated commissions, or irregular procurement processes. Yet if arbitration ignores corruption because it is hard to prove, it risks becoming an instrument for enforcing illegal arrangements.
The article traces the field’s evolution from ICC Case No. 1110 (Judge Gunnar Lagergren 1963), long read as suggesting that disputes involving corruption were not arbitrable. Modern arbitration has moved away from that view. Today, tribunals generally accept that corruption allegations are arbitrable, but may have serious consequences for jurisdiction, admissibility, the merits, enforcement, or public policy.
One of the article’s most useful contributions is its discussion of red flags. Because corruption is rarely proven by direct evidence, tribunals often rely on circumstantial indicators. These may include unusually high commissions, lack of evidence of services rendered, the absence of relevant qualifications, short or suspiciously timed contracts, opaque payment structures, or obstruction during the proceedings. Cases such as Metal-Tech v. Uzbekistan and Spentex v. Uzbekistan demonstrate how red flags can support adverse inferences and shift the evidentiary analysis.
The authors also examine sanctions. A tribunal confronted with corruption may declare a contract void, refuse relief, deny enforcement, apply the clean hands doctrine, or rely on public policy. Yet uncertainties remain, including whether a corrupt contract should be treated as void from the outset or merely unenforceable at the request of a party. The broader point is clear: arbitration must be capable of dealing with corruption rigorously. If it cannot, its claim to legitimacy as a transnational dispute resolution system is weakened.
Arbitrators’ Ethical Conduct
If counsel ethics concerns the conduct of party representatives, Eduardo Damião Gonçalves’s contribution, which revisits a theme Gaillard addressed in 1990 and again in 2002, shifts the focus to arbitrators and the ethical obligations that underpin confidence in the arbitral process itself. Rather than revisiting familiar principles of independence and impartiality, the author invites readers to view these duties as dynamic obligations that run throughout the life of the proceedings and ultimately safeguard arbitration’s legitimacy.
The article offers a timely reflection on the evolving expectations placed upon arbitrators. As disclosure standards become increasingly demanding and parties subject appointments to greater scrutiny, ethical conduct can no longer be understood as a purely formal exercise. Instead, the contribution argues that legitimacy depends on the continuous exercise of judgment, transparency, and professional integrity, particularly where difficult questions of conflicts, repeat appointments, or procedural management arise.
By moving beyond a purely compliance-based understanding of ethics, the contribution reinforces one of the central messages running throughout this special issue: the legitimacy of international arbitration ultimately rests not only on the rules governing the process, but on the conduct of those entrusted with administering it.
Gonçalves also addresses newer ethical frontiers. One is the use of artificial intelligence in arbitral decision-making. If arbitrators use AI tools to review evidence, structure reasoning, or draft portions of an award, questions arise about confidentiality, delegation of mandate, transparency, and due process. Another is the possible duty to report suspected corruption, which may conflict with confidentiality and procedural fairness. These issues show that arbitrator ethics is not static. It evolves with technology, institutional expectations, and the expanding public role of arbitration.
The Expert’s Unethical Conduct
The final thematic contribution, by Marcela Levy, concerns the ethical conduct of expert witnesses. Expert evidence is indispensable in many arbitrations, particularly in construction, energy, finance, damages, valuation, and technical disputes. Rather than questioning the legitimacy of party-appointed experts, Levy explores how the inherent tension between party appointment and professional independence can be managed through robust ethical standards and effective procedural safeguards.
The article’s principal contribution lies in its emphasis on intellectual integrity as the defining characteristic of credible expert evidence. While complete impartiality may be difficult to achieve within an adversarial framework, independence of judgment remains indispensable. Levy’s discussion of the so-called “hired gun” expert is particularly insightful, illustrating how advocacy disguised as technical expertise risks undermining not only the evidentiary process but also the tribunal’s ability to reach sound and well-reasoned decisions. When an expert states that the opinions expressed are genuinely held, the statement is not a formality. It marks the ethical boundary between persuasion and distortion.
Importantly, the contribution adopts a pragmatic rather than punitive perspective. By highlighting mechanisms such as expert conferencing, joint reports, tribunal scrutiny of assumptions, and reputational accountability, Levy demonstrates that the reliability of expert evidence ultimately depends less on formal rules than on the ethical commitment of those entrusted with assisting the tribunal.
Arbitral Awards and the Craft of Decision-Making
The issue closes with Dr Mariel Dimsey’s book review of the second edition of Chan Leng Sun SC’s Arbitral Awards, a fitting conclusion to a special issue devoted to ethics and legitimacy. If the preceding contributions examine the conduct of the participants throughout the arbitral process, this final review reminds readers that those ethical choices ultimately crystallise in the arbitral award itself.
Dimsey commends the book as a comprehensive and carefully structured guide to the law of arbitral awards, particularly from the perspective of Singapore and other Model Law jurisdictions. The review highlights the book’s practical value on issues such as setting aside, remission, recognition, enforcement, and public policy. More broadly, its inclusion reinforces an important message running throughout the issue: the legitimacy of arbitration is ultimately measured by the quality, integrity, and enforceability of its final product.
Conclusion: Ethics as Arbitration’s Condition of Survival
This special issue succeeds not only as a tribute to Emmanuel Gaillard, but also as a thoughtful reflection on the challenges confronting contemporary international arbitration. Rather than treating ethics as an abstract ideal, the contributors demonstrate that it is woven into every stage of the arbitral process—from jurisdiction and party conduct to advocacy, decision-making, expert evidence, and the drafting of awards.
Taken together, the contributions reveal that arbitration’s legitimacy cannot be sustained by efficiency, neutrality, or enforceability alone. Instead, it depends upon the ethical conduct of all those who participate in the process. Whether addressing abuse of process, conflicts of interest, corruption, expert independence, or emerging technological challenges, the volume consistently shows that ethical questions are not peripheral concerns but structural features of arbitration as a transnational system of justice.
In this respect, the collection faithfully reflects Gaillard’s intellectual legacy. His conception of arbitration as an autonomous legal order necessarily carries with it a shared responsibility to uphold its integrity. As arbitration continues to evolve in response to new commercial realities and technological developments, maintaining that ethical foundation will remain essential to preserving the confidence of parties, courts, and the wider international community. This special issue therefore serves not only as a commemoration of Gaillard’s enduring influence, but also as a timely reminder that ethics remains one of the indispensable conditions of arbitration’s continued legitimacy.
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