December, 2017
Rules of ethics in arbitration conducted at the Israeli Institute for Business Arbitration
introduction
Arbitration is a quasi-judicial decision-making process in civil matters that is conducted in the private sector and is mainly based on the agreement of the parties. In addition to the contractual basis, arbitration will also have a public aspect due to its being a recognized alternative to state jurisdiction, and in view of the close relationship it has with the court, which accompanies its proceedings until their conclusion, and in light of the need to strengthen the public’s trust in the institution of arbitration as a tool for resolving disputes outside of court. The quasi-judicial and public nature of arbitration requires a high level of ethics to ensure a fair and honest arbitration procedure, conducted at a high professional level and with maximum judicial efficiency.
The need for ethics rules in arbitration is particularly evident even when compared to the ethics of judges. Arbitration by its nature is not subject to the review and supervision mechanisms that exist in the judicial system in relation to judges; The proximity of the arbitrators to the business systems in the economy, at the same time as performing their quasi-judicial role in the arbitration, creates ethical dilemmas that are not shared to the same extent in relation to judges, who are disconnected from the centers of activity of the economy at the beginning of their judicial tenure.
The main purpose of ethics in the arbitration procedure is to ensure that arbitration is a proper substitute for a normal judicial procedure, to bring about the discovery of the truth in a neutral and objective deliberative framework characterized by proper professional skill and the maintenance of the principles of natural justice. Aside from this purpose, the goal of the ethics rules is to strengthen public trust in the arbitration institution as a proper mechanism for deciding civil disputes. Deviation from ethical norms in arbitration may, therefore, not only harm the litigants, but also weaken public confidence in the effectiveness of alternative decision-making channels to the court.
It is important to be aware of the distinction between rules of conduct in an ethical code and binding legal rules, the violation of which involves enforcement and sometimes punishment. The distinctions between law and ethics are not always sharp and clear, but it is important to emphasize that while the rules of law determine what is forbidden behavior, the rules of ethics determine the norms of appropriate behavior. As such, the norms of ethics may add to the norms of law a layer that deals with improper behavior, even if it is not prohibited by law.
For the purpose of formulating rules of ethics in arbitration, the Israeli Institute for Business Arbitration (hereinafter the “Institute”) established a professional committee. In designing the rules of ethics, the committee referred to a number of levels: a person’s suitability for an arbitrator’s position professionally, as well as in terms of integrity and a clean past; Rules of ethics in the behavior of an arbitrator at the deliberative level, and duties of care and trust applicable to an arbitrator in the performance of his duties; The rules of ethics refer not only to the arbitrator but also to other parties involved in the arbitration process, such as – litigants, lawyers, and expert witnesses in arbitration.
The committee for drafting the rules of ethics in arbitration chose the method of detailing the rules of ethics as opposed to a general code of values. This approach was adopted so that the arbitrators and the other parties involved in arbitration would be presented with a set of detailed rules that would guide them on how to conduct themselves properly in concrete situations that require reference. However, detailing the rules does not detract from the overriding principles of ethics that prevail over the individual rules.
In formulating the content of the ethics rules, attention was paid to the relationship between the consensual aspect and the public element in arbitration, and this in accordance with the proper weight that should be attributed to each of these elements, taking into account the matter in question.
These ethics rules of the institution were specially adapted to an organizational framework in which arbitrations are conducted. In this framework, by virtue of these rules, a permanent ethics committee was established for ongoing discussion of both general and specific ethical questions, and the institution’s president was granted the authority to decide on ethical questions that arise in arbitrations conducted at the institution. However, the essence of the ethics rules in this code also corresponds to the needs of private arbitrations that are not conducted in any organizational framework.
It is to be hoped that the consciousness of ethics will penetrate the depth of the world of arbitration – both in the organizational frameworks in which arbitrations are conducted, and in private arbitrations – in a way that will ensure the integrity of the arbitration procedures, and will strengthen the public’s trust in this alternative decision-making process, which entails a great advantage for the litigants and the public system alike.
The committee considers it important to apply the proposed ethics rules also in other organizational institutions where arbitration procedures are conducted, as well as in private arbitration procedures. The committee also sees before its eyes the importance of anchoring ethics rules for arbitrators in primary legislation or secondary legislation.
The professional committee included the following members:
Judge (acting) Ila Proccia – Chairman; Judge (acting) Gabriel Kling;
Judge (acting) Amiram Binyamini; Prof. Asa Kosher; Attorney Dr. Dafna Kapliuk; Adv. Hanan Zelinger;
Adv. Ronan Seti (friends).
The institution expresses great gratitude and appreciation to the members of the professional committee for the resources of time and thought they invested in formulating these rules of ethics.