Common Ethical Standards for Counsel before the European Court of Justice and European Court of Human Rights

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Abstract

There is no ‘international bar’ that regulates the practice of forensic advocacy before international courts and tribunals. The lack of common ethical standards for representatives before international courts and tribunals has become increasingly topical, particularly in the field of investment arbitration. Initiatives by such professional organizations as the International Law Association and the International Bar Association to identify universal ethical principles suggest that there is a body of opinion amongst practitioners who believe that common ethical standards are necessary. However, the topic remains virgin territory in relation to the European Court of Justice and the European Court of Human Rights. This article examines the historical evolution of the representation before the Courts and the procedural and ethical problems concerning representatives that have arisen in practice. It concludes that, far from being a topic of only theoretical interest, there have been considerable problems in practice arising from questionable professional conduct by representatives and conflicting national standards. It suggests that the absence of a prescribed code of conduct setting out the Courts’ precise standard for representatives is a threat to the Courts’ procedural integrity and legitimacy. It proposes that the Council of Bars and Law Societies of Europe take the lead in drafting a code of conduct for the European Courts, in consultation with their judiciaries, which could subsequently be adopted by the Courts and integrated into national codes of conduct.

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