On 25 May 2013, the International Bar Association Council adopted the IBA Guidelines on Party Representation in International Arbitration (“the Guidelines”).
The Guidelines define “Party Representative” as “any person, including a Party's employee, who appears in an arbitration on behalf of a party and makes submissions, arguments or representations to the Arbitral Tribunal on behalf of such Party, other than in the capacity as a Witness or Expert, and whether or not legally qualified or admitted to a Domestic Bar” (simply referred to as “counsel” below).
The Guidelines can be considered as international best practice in relation to counsel conduct in arbitration. They are inspired by the principle that counsel should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense, including tactics aimed at obstructing the arbitration proceedings.
The Guidelines are divided into 7 parts, comprised of 27 guidelines, with comments providing explanations about them.
Apart from “Party Representative” the Guidelines provide definitions of various other terms, such as, “Party-Nominated Arbitrator”, “Domestic Bar”, “Ex Parte Communications”, “Misconduct”, “Witness” and “Expert”.
Application of the Guidelines (Guidelines 1 to 3)
The Guidelines are of a contractual nature. Parties may adopt them, in whole or in part, in their arbitration agreement or at any time subsequently. Arbitral tribunals may also apply the Guidelines in their discretion, subject to any applicable mandatory rules, if they determine that they have the authority to rule on matters of party representation (Guideline 1).
The Guidelines make it clear they are not intended to displace otherwise applicable mandatory laws, professional or disciplinary rules, or agreed arbitration rules. The Guidelines are also not intended to derogate from the arbitration agreement or to undermine either counsel's
primary duty of loyalty to his party or his paramount obligation to present his party's case (Guideline 3).
Party Representation (Guidelines 4 to 6)
The Guidelines provide that once the Arbitral Tribunal has been constituted, a person should not accept representation of a party in the arbitration when a relationship exists between the person and an arbitrator that would create a conflict of interest, unless none of the parties object after proper disclosure (Guideline 5).
In case of breach of that guideline, the Arbitral Tribunal may take measures appropriate to safeguard the integrity of the proceedings, including the exclusion of new counsel from participating in all or part of the arbitral proceedings (Guideline 6).
The comments on these provisions explain that the Arbitral Tribunal may consider excluding new counsel if compelling circumstances so justify and after it has given the parties an opportunity to express their views.
Communications with Arbitrators (Guidelines 7 to 8)
This part provides important guidelines for ex parte communications between counsel and a prospective or appointed Party-Nominated Arbitrator or Presiding Arbitrator.
As a general rule and reflecting best international practises, counsel should not engage in any Ex Parte Communications with an arbitrator concerning the arbitration, unless otherwise agreed by the parties (Guideline 7). This rule is subject to four exceptions, which include for instance communication with a prospective Presiding Arbitrator to determine his expertise, experience, ability, availability, willingness and the existence of potential conflicts of interest, provided the Parties are in agreement that such communication is permissible. When communicating with a prospective Party-Nominated Arbitrator or Presiding Arbitrator, counsel should not seek any views from them on the substance of the dispute (Guideline 8).
The comments on the guidelines for ex parte communications set out five discussion topics which are considered appropriate in pre-appointment communications, such as a description of the general nature of the dispute or the terms of the arbitration agreement and any agreement as to the seat, language, applicable law and rules of the arbitration.
Submissions to the Arbitral Tribunal (Guidelines 9 to 11)
This part of the Guidelines concerns counsel's responsibility when making submissions of fact (Guidelines 9 and 10) and tendering witness or expert evidence to the Arbitral Tribunal (Guideline 11).
Counsel, who learns that he previously made a false submission of fact to the Arbitral Tribunal, must promptly correct such submission, unless prevented from doing so by confidentiality and privilege.
Further, counsel should not knowingly offer false evidence or testimony. The Guidelines provide a non-exhaustive list of possible remedial measures where a witness or expert intends to present or presents evidence that counsel knows or later discovers to be false. Remedial measures include urging the witness or expert to correct or withdraw the false evidence or even withdrawing as counsel, if the circumstances so warrant.
Information Exchange and Disclosure (Guidelines 12 to 17)
The Guidelines set out important guidance as to the proper standards of preserving, collecting and producing documents in international arbitration.
Such standardisation of duties relating to document production is, for instance, particularly important where the integrity and fairness of the arbitral proceedings may be undermined by a disparity in access to information or evidence, because one counsel may consider himself obligated to ensure that his party undertakes a reasonable search for, and produces, all relevant, non-privileged documents, while another counsel may view document production as the sole responsibility of the party whom he or she represents.
Guidelines 12 to 17 deal with duties relating to the proper preservation and production of documents, and seek to prevent requests for document production and objections to such requests for an improper purpose, such as to harass or cause unnecessary delay.
Witnesses and Experts (Guidelines 18 to 25)
Guidelines 18 to 25 concern interactions between counsel and witnesses and experts, and are intended to reflect best international arbitration practise with respect to the preparation of witness and expert testimony.
Counsel may assist in the preparation of witness statements and expert reports, but should seek to ensure that a witness statement reflects the witness's own account of relevant facts, events and circumstances (Guideline 21), and that any expert report reflects the expert's own views, analysis and conclusions (Guideline 22).
Further, counsel may meet or interact with witnesses and experts to discuss their prospective testimony. However, counsel's conduct must, at all times, be consistent with the principle that the evidence given should reflect the witness's own account of relevant facts, events or circumstances, or the expert's own analysis or opinion (Guideline 24).
The comments on Guideline 24 provide further guidance on what counsel may do: counsel may help a witness in preparing his or her own witness statement or expert report and assist a witness in preparing for his testimony in direct and cross-examination, including through practise questions and answers. Such preparation may include a review of the procedures through which testimony will be elicited and preparation of both direct testimony and cross-examination.
Guideline 25 provides that counsel may pay, offer to pay or acquiesce in the payment of reasonable compensation to a witness for his time and a reasonable fee for the professional services of an Expert (Guideline 25).
Remedies for Misconduct (Guidelines 26 to 27)
Finally, the Guidelines set out provisions allowing an Arbitral Tribunal to sanction counsel misconduct, i.e. a breach of the Guidelines or any other conduct that the Arbitral Tribunal determines to be contrary to counsel's duties.
Remedies include the drawing of appropriate inferences in assessing the evidence relied upon, or the legal arguments advanced by counsel and considering counsel's misconduct in apportioning the costs of the arbitration (Guideline 26).
The Guidelines provide various non-exhaustive and non-binding factors, which the Arbitral Tribunal should take into account when addressing issues of misconduct, so as to apply the most proportionate remedy or combination of remedies. These factors include the need to preserve the integrity and fairness of the arbitral proceedings and the enforceability of the award, the potential impact of a ruling on the rights of the parties and relevant considerations of privilege and confidentiality (Guideline 27).