Charles N. Brower*
I. Why do we care about ethics and transparency?
The first question that we must ask ourselves is “why do we care about ethics and transparency?” The answer, of course, is that ethics and transparency better ensure legitimacy—general public acceptance that any rule-based system is authoritative and binding. Courts require legitimacy if they are to remain stable and maintain their power. If courts lose legitimacy, they will not be obeyed. If they are not heeded, they lose their power. If they lose their power—if parties abandon faith in the law—people will seek recourse in self-help, returning society to a Hobbesian state of nature.
According to Martin Shapiro, Berkeley’s resident expert on the subject, courts’ central task in maintaining legitimacy is to preserve their basic triad or triptych structure—composed of two disputants and a neutral third intervener—and to prevent it from breaking down to the point where one disputant perceives it as “two against one.” Courts have employed numerous strategies over the centuries to prevent such collapse, including ensuring that parties have consented to the triad, and the court applies truly neutral legal principles. Nowadays, parties have increasingly sought private arbitration of their disputes, particularly where those disputes are international in character. Though arbitral tribunals almost are universally ad hoc adjudicating mechanisms, arbitrators and arbitral institutions also have an interest in maintaining legitimacy, both for the mutual acceptance of their awards by the parties before them and for broad public acceptance of the entire law-based system of which they are a part.