Companies can now have more comfort in their party representatives, and ultimately the enforceability of future arbitral awards. On 25 May 2013, the International Bar Association (“IBA”) released its first ever Guidelines on Party Representation in International Arbitration (“Guidelines”).
provide a single, unified, source of international best practice behaviour
expected of all party representatives. Where adopted, by contracting parties or
the arbitral tribunal, the Guidelines will provide greater comfort to
companies engaging practitioners in international arbitrations, and assist in
promoting the enforcement of arbitral awards.
arbitration is a field that draws professionals from different backgrounds,
sometimes working in a foreign jurisdiction, on disputes with seats in other jurisdictions. Practitioners encumbered by unwieldy conflicts between
rules of conduct in multiple jurisdictions have long called for guidance on
general accepted practice. The Guidelines do not replace mandatory or
professional domestic requirements.
Instead, they offer a non-domestic alternative to a choice of ethical
rules, and indicate accepted principles to counsel handling disputes when
multiple jurisdictions are involved. For clients with cross-border contracts,
particularly those involving different legal systems, the Guidelines offer a
compromise. Further, parties may point
to conduct in line with the Guidelines should any challenges occur, thereby
increasing the enforceability of an award.
Guidelines : a brief summary
The Guidelines provide a comprehensive set of conduct rules relating to:
- Party Representation
- Communications with Arbitrators
- Submissions to the Arbitral Tribunal
- Information Exchange and Disclosure
- Witnesses and Experts
- Remedies for Misconduct
If any guideline is not followed by a practitioner, the arbitral tribunal has
broad remit to award Remedies for Misconduct, in order to preserve the
“fairness and integrity” of the proceedings. For example, the arbitral tribunal may
admonish the practitioner, and, where appropriate, draw adverse inferences
against the evidence or arguments presented or consider the misconduct in
Guidelines : the mechanics
Representation issues may seem obvious and universal at first glance, but in reality many
jurisdictions dictate ethical rules based on different expectations and legal
features. Continuing discussions with
party-appointed arbitrators regarding substantive points may seem reasonable to
one party, while crossing the line on rules of conflicts in other
Additionally, the Guidelines resolve certain situations which other rules had left open. For example, now, if a tribunal has already
been constituted, counsel with a conflict with a member of the tribunal, may
not accept representation. This provision
prevents the potential abuse of the proceedings by one party who wishes to drag
down costs and delay proceedings.
The Guidelines do
not carry legal weight on their own, and must be adopted by the parties to an
arbitration, or the tribunal itself, to have any immediate effect. In other words, one party cannot unilaterally
implement them. Where the Guidelines are adopted, practitioners – and their
clients – potentially face sanction by the arbitral tribunal.
The Guidelines may
also provide persuasive guidance by which to assess the conduct of
practitioners. If, for example, an award is challenged on the basis of alleged
deficiencies in a practitioner’s conduct, a supervisory or enforcing court may
refer to the Guidelines. In most
circumstances, if the behaviour in question falls within the Guidelines, it
will not support a challenge, hence promoting the enforcement of awards.
The Guidelines form
part of IBA’s "best practice" guidelines set, which are used
extensively in international arbitration. For example, the IBA Rules on the
Taking of Evidence in International Arbitration, the IBA Principles on Conduct
for the Legal Profession, and the IBA Rules of Ethics for International
The IBA has indicated
that it will introduce revised guidelines on counsel conduct and conflicts of
interein arbitration sometime in 2013–14.