Award in ICC Case No. 6618

A United States company referred to as Claimant A (plaintiff) retained a law firm in a Latin American country (Country R) to obtain legal advice related to Claimant A’s investment in Respondent B (defendant). The law firm reviewed documents and by-laws provided by Respondent B. The law firm performed an analysis of the proposed investment, which indicted the investment did not require prior government authorization under the laws of Country R. Claimant A decided to invest in Respondent B based on the legal analysis completed by the law firm. Claimant A and Respondent B entered an arbitration after Claimant A invested in Respondent B. Claimant A discovered during the arbitration that the law firm it retained for legal advice was also retained as counsel for Respondent B. During the arbitration, the law firm also raised a defense that the by-laws of Respondent B were invalid under Country R, a conclusion not contained within the law firm’s analysis for Claimant A. The Civil and Criminal Codes and the Code of Ethics of Country R provided that an attorney retained by one party may not simultaneously or thereafter represent another party in the same controversy even if the attorney terminates the previous representation. The Civil and Criminal Codes and the Code of Ethics of Country R also provided that a law firm must refrain from participating in a case if the law firm would disclose or take advantage of a client’s privileged information. Citing these statutes and the code of ethics for Country R, Claimant A then requested the exclusion of Respondent B’s counsel from the arbitration proceedings. The arbitral tribunal, sitting in Canada, considered Claimant A’s request to exclude Respondent B’s law firm.