The International Bar Association's recently released Guidelines on Party Representation in International Arbitration allow parties to adopt a uniform standard of conduct to govern legal representatives in international arbitration. Where the parties to an arbitration come from very different legal backgrounds with conflicting rules on party representation, applying the Guidelines is worth seriously considering as this may significantly contribute to a time- and cost-effective arbitration process.Where the parties to an arbitration come from very different legal backgrounds with conflicting rules on party representation, applying the Guidelines is worth seriously considering as this may significantly contribute to a time- and cost-effective arbitration process.
Rules and practices on counsel conduct and party representation may substantially differ among jurisdictions. Since international arbitration usually involves parties from different countries, the parties' legal representatives (or counsel) often come from different legal systems with their own procedural rules on ethical conduct and on party representation. This may lead to uncertainty as to which of these rules and codes are to be applied, which in turn can adversely affect the arbitral proceedings. The purpose of the Guidelines is to address this uncertainty.
The Guidelines offer parties a uniform transnational code of conduct that they can adopt to govern the conduct of their counsel in international arbitration. For the Guidelines to apply in a given arbitration, the parties in question must so agree, for example in their arbitration agreement or in the Terms of Reference drawn up at the outset of the arbitration. Arbitrators may also issue a procedural order in which they declare the Guidelines to be applicable.
Whether it is advisable to adopt the Guidelines in arbitration agreements or subsequently depends on the parties involved and on the circumstances of the case.
The Guidelines address six main key matters:
Party representation A party should not appoint a representative who has a relationship with an arbitrator that would create a conflict of interest. If a conflict of interest arises after the arbitral tribunal is constituted, the arbitral tribunal may take measures to safeguard the integrity of the proceedings. This rule also covers changes in party representation in the course of the arbitration.
Communication with arbitrators Subject to limited and narrow...