TOOLS OF THE TRADE – JUNE 2021
CODE OF ETHICS PRACTICAL APPLICATION: INTRODUCTION
(PART 1 OF 4)[1]
Background
During our previous series on Critical Thinking and Logical Reasoning[2] we examined and maintained that awards must be accurate, relevant, precise, clear, free of logical flaws and filled with just the right amount of depth and breadth. However, at this point, we are turning our gaze inwards to the force behind an award – that is, the author and authority – the arbitrator. From the previous external overview on an arbitral award’s structure and content, we now redirect our focus to the internal landscape of an arbitrator’s character to examine the moral fibre required for the successful execution of arbitrational duties.
The Association of Arbitrators (Southern Africa) NPC (AoA) recently adopted a Code of Ethics that stipulates in Rule 3 that ‘[m]embers who act as arbitrators undertake serious responsibilities to the parties as well as to the public. Those responsibilities include ethical obligations.’ We may ask ourselves, what is meant by ‘ethical obligations’ in this context; and what are then the duties, prohibitions and/or requirements implied by ‘serious responsibilities’? Are these duties law-based obligations, i.e., primarily legal in nature, or do they imply moral-based obligations (i.e., honour-bound to keep a promise or abide by an agreement or a contract), or are some of these duties pure moral obligations that demand a standard of conduct that exists irrespective of any laws or agreements?
To answer these questions and to gain a better understanding of the ethical ethos of the AoA, we need to uncover the meaning and implications of the underlying, implicit and critical ethical obligations stipulated in its Code of Ethics.
Ethics is the discipline concerned with what is morally good and bad and morally right and wrong. It informs our decision making and presents as the ultimate value and standards by which we govern our lives. Our ethical standards (or moral compass), expresses itself in our character and manifests itself in the proverbial vices and virtues of an individual.
A virtue, according to Hursthouse and Pettigrove, is an
‘… excellent trait of character … a disposition, well entrenched in its possessor … To possess a virtue is to be a certain sort of person with a certain complex mindset. A significant aspect of this mindset is the wholehearted acceptance of a distinctive range of considerations as reasons for action. The concept of a virtue is the concept of something that makes its possessor good: a virtuous person is a morally good, excellent or admirable person who acts and feels as she should.’[3]
Traditionally there has been a strong correlation between religious beliefs and virtue ethics. According to the Bible, the seven deadly sins or capital vices are pride, greed, wrath, envy, lust, gluttony, and sloth. Virtues, on the other hand, in a biblical sense, include humility, generosity, kindness, patience, chastity, temperance and diligence. Historically there is an equally strong interconnection between classical philosophy and ethics. From this standpoint, the four cardinal virtues are prudence, justice, fortitude and temperance.
Three additional factors worth noting are:
| (a) | That ethics and the relationship of virtues to the social order has changed over time; |
| (b) | that virtues seem to be field or target specific, and |
| (c) | that virtues are role. |
Virtue changes over social order and time
Morality is not rigid or monolithic – for Homer (484 – 425 BC), for example, the paradigm of human excellence is the warrior and for Aristotle (384 – 322 BC) it is the Athenian gentleman (1895:182).[4] Benjamin Franklin’s (1706 – 1790) list of thirteen virtues, chosen for its ‘necessity and desirability’, mentions temperance, cleanliness, order, silence, industry, sincerity, moderation, tranquility, frugality, humility, resolution, chastity and justice.[5] In our lifetime, we have also noticed a visible shift in legal ethics, as well as and lifestyle ethics, from purity-based morality, which are rooted in ideas of sanctity and piety, to authority-based morality, which essentially prizes duty, deference and social order. A further shift also has taken place from an authority-based morality to a fairness-based morality, which stands in opposition to authority-based morality. Fairness-based morality judges right and wrong using values of equality, impartiality and tolerance, and disdains bias and prejudice.[6]
Field specific virtues
Swanton (2003: 19) views a virtue as ‘a disposition to respond to, or acknowledge, items within its field or fields in an excellent or good enough way’.[7] (Emphasis added). For instance, example: ‘To avoid a collapse of argumentation, mere civil virtues (respect, humility or honesty) do not suffice: we need virtues that specifically attach to the practice of making conscious inferences’, says Morin (2014: 499).[8] (Emphasis added).
We find that each profession has a unique Ethical Code or Code of Conduct that stipulates the professional duties (or obligations) and standard of services required for the participating members in their respective fields. We can say that it is an ‘external’ system that governs, depends on, and is consistent within a certain context. To illustrate, we find that while the principles of impartiality and fairness are paramount to the field of arbitration, that the Latin maxim primum non nocere (English trans: ‘first, do no harm’) principle, is the most widely known phrase of the original Hippocratic Oath that applies in the field of medicine.[9]
Knowledge of the relevant laws, rules and regulations set out in an Ethical Code is unfortunately not enough to ensure high ethical standards. It is possible for an individual to strictly follow these external ethical principles without having any morals at all. Likewise, one could violate ethical principles, set out in a given system of rules, in a manner that upholds and preserves moral integrity. A field-specific Code of Ethics therefore only provides the framework of conduct for an individual in a specific field, but it is the internal locus of control, the moral guiding system, the character and virtues of an individual that ultimately enables us to achieve excellence in a specific field. This leads us to the role specific virtues required of an arbitrator.
Role specific virtues
Historically fair resolution of disputes by an impartial third party would be resolved at a family, clan or tribal level with the elder, headman, chief or even a king acting as the presiding officer. Arbitration is mentioned in both Greek mythology and the Bible: King Solomon, for example, can be seen as one of the earliest arbitrators mentioned in the Bible. Arbitration was observed as far back as 337 BCE when Phillip II, father of Alexander the Great, employed it to resolve territorial disputes that emerged during peace treaty negotiations with the Southern States of Greece.[10]
Today, this responsibility of an alternative impartial third-party dispute resolution process weighs and relies squarely on the shoulders of an arbitrator. It is fair to say that the standard and success of an arbitration is equal to the quality of the arbitrators involved in it. The arbitrator is the sine qua non of the arbitral process, and the process cannot rise above the quality of the arbitrator, says Rajoo (2013: 330). He describes arbitration as ‘the most ethical institution in the society of labor relations – arbitrators exercising their ethical powers as to what is good or bad, right or wrong.’[11]
Rogers views the arbitrator’s conduct and integrity as critical to the legitimacy of the national and international arbitration system. The authority and legitimacy of arbitration rests on the wisdom, efficacy and the ethics of its arbitrators: ‘The arbitrator, in other words, both personifies the promise of neutral decision-making and provides the only tangible indicia of decisional legitimacy.’[12]
Conclusion: The way forward
Apart from understanding the underlying meaning, implication and ethical standards stipulated in the AoA’s Code of Ethics, one might ask: Why is it important to fully gasp these ethical principles?
First, our individual character and moral compass is as fluid and expansive as some changes that we have seen throughout history.
Second, and perhaps more importantly, once standards of excellence within a specific field are recognised and properly understood, these attitudes and behaviour can be practiced in order to achieve a higher order of proficiency. MacIntyre defines practice as:
‘… any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions to the ends and goods involved, are systematically extended.’[13]
We can conclude that a virtue is an internal and acquired human quality which enables us to practice and achieve excellence in our specific field or activity.
For the remainder of the year, Arbitrarily Speaking! will feature three Virtue Ethics essays based on, and in accordance with the stipulations set out in, Rules 3, 8.1 and 15 of the AoA’s Ethical Code:
- Rule 3 of the Ethics Code leans on the virtue of prudence – prudence is the ethic of responsibility: In other words, it is a virtue that requires that we answer not just for our intentions or principles, but also for the consequences of our acts.[14]
- Rule 8.1 stipulates that an arbitrator should only accept an appointment if he or she is satisfied that that he or she ‘will be able to act without bias, self-interest or fear of criticism.’ This requires fortitude. Fortitude is the ethic of moral strength and intellectual courage.
- Rule 15 provides that the ‘arbitrator shall proceed diligently to resolve the dispute or disputes between the parties in a fair and efficient manner’, which impels the virtue of justice. Justice, according to Aristotle, hinges entirely on respect for legality and equality: ‘The just, then is the lawful and the fair, while the unjust is the unlawful and unfair’.[15]
The benefits of applied knowledge of these classical philosophical cardinal virtues (prudence, fortitude and justice) are twofold: Firstly, it will guide our members to align their conduct and actions with the various standards, rights and obligations, attitude and behaviour stipulated by the Code of Ethics; and, secondly, it is only by understanding and practicing the necessary character strengths of wisdom, intellectual bravery, temperance and justice that we can obtain and secure arbitrational excellence.
Bibliography
Comte-Sponville A (2002) A Short Treatise on the Great Virtues: The uses of philosophy in everyday life William Heinemann: London.
Ford, P (2002) Benjamin Franklin on Moral Perfection https://www.ftrain.com/franklin_improving_self (accessed 2 March 2021).
Haslam,N, McGrath, MJ, Wheeler, MA. (2019) The Conversation: academic rigour, journalistic flair. https://theconversation.com/changing-morals-were-more-compassionate-than-100-years-ago-but-more-judgmental-too-112504 (retrieved 29 April 2021).
Hursthouse, R, Pettigrove, G (2018) ‘Virtue Ethics’, The Stanford Encyclopaedia of Philosophy Winter Edition, Edward N. Zalta (ed.) https://plato.stanford.edu/archives/win2018/entries/ethics-virtue/ (accessed 25 April 2021).
MacIntyre A (1985) After Virtue Gerald Duckworth & Co. Ltd.
Morin, O. (2014) The Virtues of Ingenuity: Reasoning and Arguing without Bias. Topoi 33, 499–512 (2014). https://doi.org/10.1007/s11245-013-9174-y (retrieved 4 May 2021).
Rantsane, DP. (2020) The Origin of Arbitration Law in South Africa. Potchefstroom Electronic Law Journal (PELJ), 23(1), 1-27. https://dx.doi.org/10.17159/1727-3781/2020/v23i0a8963 (accessed 13 April 2021).
Rogers CA (2008) The Ethics of International Arbitrators. Bocconi Legal Studies Research Paper No. 2007-01, Leading Arbitrators’ Guide to International Arbitration, Juris Publishing. Available at https://ssrn.com/abstract=1081436 (accessed 7 March 2021).
Velleman JD (2007) Self to Self, Cambridge University Press.
[1] By Maritza Breitenbach, Bachelor of Science (cum laude) from North-West University (NWU); Teaching Diploma, NWU; Certificate in Small Business Management (magna cum laude) from NWU; and a Master’s Degree (Philosophy in Biomedical Ethics) (cum laude), the latter from the University of Stellenbosch (US).
[2] See the ‘Tools of the Trade’ section in the May 2020, July 2020, September 2020, and November 2020 editions of the E-periodical Arbitrarily Speaking!
[3] R Hursthouse & G Pettigrove ‘Virtue Ethics’ in Stanford Encyclopaedia of Philosophy 2018 Winter Edition, Edward N. Zalta (ed.) https://plato.stanford.edu/archives/win2018/entries/ethics-virtue/ (accessed 25 April 2021).
[4] A McIntyre After virtue (1985) 182.
[5] P Ford, Benjamin Franklin on Moral Perfection, (2002) https://www.ftrain.com/franklin_improving_self (accessed 2 March 2021).
[6] H Haslam et al. Changing morals (2019). Available on The Conversation: academic rigour, journalistic flair at https://theconversation.com/changing-morals-were-more-compassionate-than-100-years-ago-but-more-judgmental-too-112504 (retrieved 29 April 2021)
[7] Swanton 2003: 19 quoted in ‘Virtue Ethics’ (n 3 above).
[8] O Morin, 2014, The Virtues of Ingenuity: Reasoning and Arguing without Bias. Topoi 33, 499–512.
[9] The Hippocratic Oath dates back to circa 275 CE and, historically, one of the best known Greek medical texts. It was a binding document used as an oath of ethics to swear in physicians.
[10] DP Rantsane The Origin of Arbitration Law is South Africa (2020).
[11] DS Rajoo ‘Importance of Arbitrators’ Ethics and Integrity in Ensuring Quality Arbitrations’ (2013), 6(2) Contemporary Asia Arbitration Journal 329 at p. 330.
[12] A Catherine, The Ethics of International Arbitrators, Bocconi Legal Studies Research Paper No. 2007 – 01; Leading Arbitrators’ Guide to International Arbitration, Juris Publishing 2008 https://ssrn.com/abstract=1081436 (accessed 7 March 2021).
[13] MacIntyre (n 4 above) 187.
[14] Rule 3: ‘Members who act as arbitrators undertake serious responsibilities to the parties as well as to the public. Those responsibilities include ethical obligations.’
[15] Aristotle, Nicomachean Ethics, V,2 and V,9.