5 Publicist 1 (2010)

handle is hein.journals/public5 and id is 1 raw text is: Keynote Address: The Ethics of Arbitration:
Perspectives from a Practicing International
Arbitrator
By
Charles N. Brower*
WHY DO WE CARE ABOUT ETHICS AND TRANSPARENCY?
The first question that we must ask ourselves is why do we care about
ethics and transparency? The answer, of course, is that ethics and transparency
better ensure legitimacy general public acceptance that any rule-based system
is authoritative and binding. Courts require legitimacy if they are to remain
stable and maintain their power.1 If courts lose legitimacy, they will not be
obeyed. If they are not heeded, they lose their power. If they lose their power
if parties abandon faith in the law people will seek recourse in self-help,
returning society to a Hobbesian state of nature.
According to Martin Shapiro, Berkeley's resident expert on the subject,
courts' central task in maintaining legitimacy is to preserve their basic triad or
triptych structure composed of two disputants and a neutral third intervener
and to prevent it from breaking down to the point where one disputant perceives
it as two against one. Courts have employed numerous strategies over the
centuries to prevent such collapse, including ensuring that parties have
consented to the triad, and the court applies truly neutral legal principles.2
Nowadays, parties have increasingly sought private arbitration of their disputes,
particularly where those disputes are international in character. Though arbitral
tribunals almost are universally ad hoc adjudicating mechanisms, arbitrators and
arbitral institutions also have an interest in maintaining legitimacy, both for the
mutual acceptance of their awards by the parties before them and for broad
public acceptance of the entire law-based system of which they are a part.
*Judge, Iran-United States Claims Tribunal, The Hague; Judge Ad Hoc, Inter-American Court of
Human Rights, San Jose, Costa Rica; Arbitrator Member, 20 Essex Street Chambers, London;
formerly Acting Legal Adviser, United States Department of State, Deputy Special Counsellor to the
President of the United States, President, American Society of International Law, and Chairman,
Institute for Transnational Arbitration.
1. See MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS 1-8 (U. OF
CHICAGO PRESS, 1981).
2. Id. at 1-2.

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