On 25 May 2013, the IBA Council adopted by a resolution a new set of guidelines, the “IBA Guidelines on Party Representation in International Arbitration” (the “Guidelines”).
The need for such guidelines came from the observation that “party representatives in international arbtiration may be subject to diverse and potentially conflicting bodies of domestic rules” (Preamble of the Guidelines), which creates a high degree of uncertainty on which rules govern party representation in international arbitration. After a vast consultation, the IBA issued 27 guidelines and a commentary thereof, which form a “do’s and don’ts” of party representatives’ conduct in international arbitration.
The Guidelines are divided into seven themes:
- “Application of the Guidelines” (Guidelines 1-3): Much like the 2004 IBA Guidelines on Conflicts of Interest in International Arbitration, the Guidelines are not compulsory unless the parties have adopted them. They rather consist in a set of soft rules of counsel conduct in international arbitration.
- “Party Representation” (Guidelines 4-6): These guidelines envisage the situation when, after the constitution of the arbitral tribunal, a counsel having a conflict of interest with one of the arbitrators is instructed by one of the parties, situation which has arisen several times recently (see, e.g., the Hrvatska case (Hrvatska Elektroprivreda d.d. v. Republic of Slovenia (ICSID Case No. ARB/05/24)). The IBA Guidelines now advise counsel to not accept representing the party unless, after disclosure, none of the parties have objected.
- “Communications with Arbitrators” (Guidelines 7-8): This section comes back on ex parte communications with arbitrators, including the practice which has developed in arbitration, when envisaging the nomination of an arbitrator, for counsel or in-house counsel to “interview” him and the extent of such interview. For example, Guideline 8(d) states that “a Party Representative should not seek the views of the prospective Party-Nominated Arbitrator or Presiding Arbitrator on the substance of the dispute“.
- “Submissions to the Arbitral Tribunal” (Guidelines 9-11): Under this heading, the Guidelines consider the submission of false facts or evidence during the procedure and encourages remedial measures should false submissions be made. Examples of remedial measures include correcting or withdrawing the false evidence (Guideline 11(d)) and even withdrawing “as Party Representative if the circumstances so warrant” (Guideline 11(e)).
- “Information Exchange and Disclosure” (Guidelines 12-17): While the 2010 IBA Rules on the Taking of Evidence in International Arbitration envisaged the scope of document production, these Guidelines tackle with the advice counsel should give their clients regarding such production, including the necessity of preserving and producing documents and the consequences of failing to produce a document.
- “Witnesses and Experts” (Guidelines 18-25): These guidelines provide the “do’s and don’ts” of counsel conduct when interacting with witnesses and experts and reflect arbitral practice regarding, for example, assistance of witnesses in the preparation of witness statements or testimonies or, under certain circumstances, payment for experts’ and witnesses’ expenses reasonably incurred, of compensation for witnesses’ loss of time incurred and reasonable fees for the professional services of a party-appointed expert.
- “Remedies for Misconduct” (Guidelines 26-27): The above Guidelines would be of very limited impact if no sanction accompanied them. This is why Guidelines 26 and 27 set forth potential sanctions to party representative misconduct (Guideline 26) and assessment by the arbitral tribunal of such misconduct (Guideline 27). Potential sanctions include, inter alia: (i) admonishments, (ii) drawing appropriate inferences when assessing the case, (iii) drawing appropriate inferences in the apportionment of the costs and (iv) taking “any other appropriate measure” to preserve the integrity of the arbitral procedure.
By establishing Guidelines on Party Representation in International Arbitration, the IBA continues its efforts to establish a more coherent arbitral practice, this time as regards party representation.
The Guidelines are available here.