The International Bar Association Council, at its session of May 25, 2013, has approved the IBA Guidelines on Party Representation in International Arbitration (the “Guidelines“). The Guidelines provide a framework for parties and their representatives to identify appropriate conduct and behaviour within the context of international arbitral proceedings.
A number of high profile commentators¹ have highlighted the potential for conflicting national rules and norms to undermine the fairness and integrity of international arbitration and called for more certainty and clarity in this area: in particular, for arbitral tribunals to be given the power to sanction counsel misconduct. The Guidelines have been formulated by a group of expert practitioners and offer a welcome and robust solution. However, the IBA is not alone in seeking to answer the call for regulation in this area. It is anticipated that the LCIA will present an alternative approach by requiring counsel to abide by certain ethical standards in order to participate in an LCIA arbitration.
The Guidelines are not intended to displace otherwise applicable mandatory laws, professional or disciplinary rules, but provide a guide to conduct which is suited to international arbitration rather than domestic litigation. They also provide a useful mechanism for familiarising clients more used to domestic litigation with the standards expected of party representatives in international arbitration. Parties may adopt the Guidelines in whole or in part by agreement. Arbitral Tribunals may also apply the Guidelines at their discretion after consultation with the parties (Guidelines 1 and 3).
The Guidelines include a general prohibition on ex parte communications between a party representative and an arbitrator after the arbitrator has been appointed (Guideline 7). Guidelines 9-11 set out a principle of “candour and honesty” to be adopted by counsel in the evidence and submissions provided to the Tribunal. The Guidelines also oblige counsel to inform parties of their obligations to retain and disclose documents, prohibit the concealment of evidence from the Tribunal and specify that counsel should not make any Request to Produce, or any objection to a Request to Produce, for an improper purpose, such as to harass or cause unnecessary delay (Guidelines 12-17).
One of the most frequently debated issues regarding counsel conduct has been that of witness preparation. This is addressed by the Guidelines at Guideline 24 which states:
“A Party Representative may, 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, meet or interact with Witnesses or Experts in order to discuss and prepare their prospective testimony.“
The Comment to Guideline 24 states that:
“As part of the preparation of testimony for the arbitration, a Party Representative may meet with Witnesses and Experts (or potential Witnesses and Experts) to discuss their prospective testimony. A Party Representative may also help a Witness in preparing his or her own Witness Statement or Expert Report. Further, a Party Representative may assist a Witness in preparing for their testimony in direct and cross-examination, including through practise questions and answers (Guideline 24). This preparation may include a review of the procedures through which testimony will be elicited and preparation of both direct testimony and cross-examination. Such contacts should however not alter the genuineness of the Witness or Expert evidence, which should always reflect the Witness’s own account of relevant facts, events or circumstances, or the Expert’s own analysis or opinion.“
The approach outlined in Guideline 24 leans more towards the common law tradition than the civil law tradition. The wide language of Guideline 24 arguably still leaves a grey area on whether the preparation of practice answers and questions and mock cross-examination, specific to the facts or issues raised in the case, is permitted and therefore whether US-style witness coaching or English-style witness familiarisation is allowed. It will be interesting to see how this Guideline and Comment are interpreted by both Tribunals and counsel in practice.
All commentators seeking greater counsel regulation have highlighted the need for conduct obligations to have “teeth” by allowing an Arbitral Tribunal to sanction counsel misconduct. In this respect the Guidelines have delivered. Guideline 26 provides that the Arbitral Tribunal may impose a number of sanctions following a finding that a party representative has committed misconduct. Importantly, Guideline 26(c) allows the Arbitral Tribunal to consider a party representative’s misconduct in apportioning costs.
The Guidelines are the IBA’s answer to the challenge of “finding a uniform set of ethical standards and rules of professional conduct that can cut across the differing landscape of legal systems across the globe“². With increasing numbers of new entrants into the market (both as arbitrators and practitioners), the Guidelines may help to level the playing field and maintain the integrity of the arbitral process. That said, counsel will still be subject to ethical obligations imposed by their national bar associations and will need to navigate a path between those national obligations and the conduct sanctioned by the Guidelines should they differ.
It remains to be seen whether the Guidelines will become as commonplace in international arbitration as the IBA’s Rules on the Taking of Evidence in International Arbitration. This may depend on whether other arbitral institutions adopt the approach anticipated in the revision of the LCIA Rules and seek to police counsel conduct directly. With commentators disagreeing on the preferred approach to regulation the issue of counsel conduct is by no means settled.