## Facts

- A United States company (“Claimant A”) retained a law firm in a Latin American jurisdiction (“Country R”) to provide legal advice connected to Claimant A’s proposed investment in a local company (“Respondent B”).
- The Country R law firm reviewed documents and by-laws supplied by Respondent B.
- The law firm prepared an analysis under Country R law stating that the contemplated investment did not require prior governmental authorization.
- Claimant A proceeded with the investment in Respondent B in reliance on the law firm’s analysis.
- A dispute later arose between Claimant A and Respondent B, and the parties commenced an ICC arbitration seated in Canada.
- During the arbitration, Claimant A discovered that the same Country R law firm it had retained for the investment advice was acting as counsel for Respondent B in the arbitration.
- In the arbitration, Respondent B’s counsel raised a defense asserting that Respondent B’s by-laws were invalid under Country R law, a conclusion not stated in the earlier analysis the firm had provided to Claimant A.
- Claimant A invoked Country R’s Civil and Criminal Codes and Country R’s Code of Ethics, which (as summarized in the secondary account) prohibit a lawyer retained by one party from representing another party in the same controversy, even after termination of the earlier engagement.
- Those sources were also described as requiring a law firm to refrain from participating where it would disclose, or take advantage of, a client’s privileged information.
- Claimant A requested that the tribunal exclude Respondent B’s law firm from the arbitration due to the alleged conflict of interest.

## Issues

1. In a Canada-seated ICC arbitration, what standards should an arbitral tribunal consider when deciding a request to exclude counsel for a conflict tied to counsel’s prior work and home-jurisdiction ethics rules (Country R)?
2. Did the firm’s earlier investment-related engagement for Claimant A—reviewing Respondent B’s corporate documents and advising on Country R legal requirements—create a disqualifying conflict when the firm later appeared for Respondent B in the same dispute?
3. How should the tribunal assess the risk that counsel might use or reveal information gained during the earlier engagement, in light of Country R’s stated conflict and confidentiality rules?

## Decision

- The tribunal addressed Claimant A’s mid-arbitration application to exclude Respondent B’s Country R law firm on conflict-of-interest grounds.
- In considering the application, the tribunal took account of the conflict and confidentiality norms cited by Claimant A from Country R’s Civil and Criminal Codes and Code of Ethics, given the lawyers’ prior retention in Country R and the relationship between that work and the arbitration.
- Public summaries of the award do not disclose the tribunal’s final disposition of the request (i.e., whether the firm was ultimately excluded or permitted to continue).

## Legal Principles

- Counsel-conflict objections in international arbitration may require a choice-of-law inquiry, because several sources may bear on counsel conduct (including the law of the seat, the tribunal’s procedural powers under the arbitral framework, and counsel’s home-jurisdiction professional rules).
- Where counsel previously advised one party on the transaction or relationship later put in issue, a subsequent appearance against that former client can raise conflict and confidentiality concerns, especially if counsel advances positions at odds with the earlier advice.
- Professional rules that bar successive representation in the same controversy, and rules aimed at preventing misuse of client confidences, can be treated by tribunals as relevant benchmarks when deciding whether counsel’s continued participation is compatible with fair proceedings.
- The case is cited (in Grigera Naón’s discussion) as an example of tribunals engaging in a conflicts-of-law analysis even on matters often framed as “procedural,” such as party representation and attorney ethics.

## Conclusion

Award in ICC Case No. 6618 (as discussed by Grigera Naón) involved a Canada-seated ICC tribunal’s consideration of a request to exclude a Country R law firm that had advised a U.S. investor on an investment and later appeared for the opposing party in the arbitration, with the challenge grounded in Country R statutory and professional rules governing conflicts and client confidences.


Award in ICC Case No. 6618, Grigera Naon, Choice-of-Law Problems in International Commercial Arbitration, 289 Recueil des Cours 9, 157-58 (2001)