The controversial power to disqualify counsel is often deployed but rarely analysed from first principles: if such a power exists, it must derive from somewhere or something. The competing arguments are contractual and status. Although in many cases it will not make any difference, the basis for any such power ought to be known. Furthermore, is the power to disqualify restricted to counsel or can it extend to others involved in the arbitration process, such as an expert? If so, does the analysis of the source of such a power apply equally to participants other than counsel? If not, on what basis can the power to prevent an expert from appearing be exercised? Can connections involve more than one degree of connection or must there be a closer degree of proximity? If the power to remove or disqualify an expert does not apply on the facts, what is the result?
Keywords: counsel, expert, contract, status, removal, disqualify
Challenges to counsel are not uncommon in international arbitration, in particular in the wake of Hrvatska v. Slovenia. The power to do so remains controversial and far from universally accepted. The question then arises, does such a power exist and, if so, what is the rationale and basis for it and does it apply to others involved in the arbitral process, for example an expert or more remote connections, or are counsel in a category alone?
The orthodox analysis recognizes both a contractual analysis and a so-called ‘status’ analysis: whether it is incident to the contractual relationship and/or whether it is the status of the tribunal per se that gives rise to powers, duties and obligations. More recently, there has been a decision founded on fiduciary duties.
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