On 25 May 2013, the International Bar Association adopted the IBA Guidelines on Party Representation in International Arbitration (Guidelines). The Guidelines are intended to provide a common set of standards and obligations to apply to representatives from all jurisdictions when acting in an international arbitration.
Background to the Guidelines
International arbitrations can involve practitioners from multiple jurisdictions with distinct domestic professional conduct rules and traditions, acting in matters with a different seat of arbitration, and different governing law. This can lead to confusion or conflict between the various practitioners’ understanding of the standards of conduct which should be applied, for example regarding ex parte communications with arbitrators or document disclosure obligations. The risk of confusion can exist even within a party’s own legal team, which may draw practitioners from different jurisdictions.
The Guidelines originate from the recommendations of a 2008 task force of experienced individuals from a variety of jurisdictions. Draft guidelines were prepared following a survey in 2010, which found support for the development of guidelines on party representation. Consultation with experienced arbitrators, practitioners and arbitral institutions occurred, and following revisions the Guidelines were adopted by the IBA Council. The central aim is to maintain the fairness and integrity of international arbitrations by providing a common standard of conduct.
When do the Guidelines apply?
The Guidelines are contractual in nature and apply where agreed by the parties (in the arbitration agreement or subsequently). The parties can apply all or a part of the Guidelines. They can also apply where the arbitral tribunal, after consultation with the parties, determines it has the authority to apply them. The Guidelines do not say when a tribunal with have the authority to determine to apply the Guidelines without express agreement by the parties. This will be a matter for the tribunal to determine, likely based on the express and implied terms of the arbitration agreement and the arbitration rules selected.
Where adopted in full, the Guidelines will apply to any person appearing and making submissions or representations on behalf of a party (including employees but excluding witnesses), regardless of whether the person is legally qualified
Importantly however, the Guidelines do not displace any mandatory, domestic, statutory or ethical obligations.
Summary of scope of Guidelines
The Guidelines deal with matters such as:
- challenges to party representatives – in particular where the arbitral tribunal has already been constituted and the new representative has a relationship with a tribunal member which creates a conflict of interest;
- communications with arbitrators – in particular prohibiting ex parte communications with an arbitrator, except in limited circumstances;
- submissions to the arbitral tribunal – including prohibiting submissions of fact known to be false;
- information exchange and disclosure – including a duty on the representative to inform the client of the need to preserve documents, advise and assist in taking reasonable steps to search for documents, and not to suppress or conceal documents requested or required to be produced;
- witnesses and experts – including the obligation of representatives to identify themselves and the client before seeking information to ensure that statements/expert reports reflect the witnesses own evidence and opinion, and not to invite or encourage false evidence; and
- remedies for breach of the Guidelines.
If the Guidelines are breached the arbitral tribunal may admonish the representative; draw adverse inferences when assessing evidence or legal arguments; take the misconduct into account when awarding costs; and take any other appropriate measure to preserve the fairness and integrity of the proceedings.
The Guidelines impose rules which are familiar to Australian practitioners, and also likely other practitioners whose domestic system and rules are based on the English common law tradition.
Where adopted by parties, the Guidelines will provide greater comfort and predictability of standards and obligations on the representatives during that international arbitration. There are, however, a number of grey areas that remain such as the degree to which US-style witness preparation will be accepted.
The Guidelines may also provide a useful reference point in challenges to the enforcement or validity of awards based on practitioner conduct.
It remains to be seen whether arbitral institutions will adopt or incorporate these Guidelines within their own rules. Unless and until this occurs, we commend parties to include these Guidelines in their arbitration agreements.