Fit and Functional in Legal Ethics: Developing a Code of Conduct for International Arbitration
In this Article, the author develops a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, integrated mechanisms for making those norms both binding and enforceable are proposed. In making these proposals, the author rejects the classical conception of legal ethics as a purely deontological product derived from first principles. This Article argues, instead, that ethics derive from the inter-relational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, the author will demonstrate, not only illuminates at a descriptive level the reasons why the different nations of the world have adopted different ethical regimes; it also guides at a prescriptive level for developing new ethics for other systems, such as international arbitration.