International Bar Association publishes guidance on party representation in international arbitration

Arbitration law expert John Gilbert of Pinsent Masons, the law firm behind Out-Law.com, said that if the new Guidelines on Party Representation (25-page / 121KB PDF) were as widely adopted as previous IBA publications, it would contribute to developing a "global standard". "This will help to give greater certainty in what parties can expect to encounter when participating in international arbitration," he said.

Founded in 1947, the IBA is a voluntary body made up of international legal practitioners, bar associations and law societies. Its current membership includes 50,000 individual lawyers and 200 bar associations and law societies. Previous arbitration guidance issued by the IBA's Arbitration Committee includes the Rules on the Taking of Evidence and the Guidelines on Conflicts of Interest.

According to the IBA, the new guidelines were "inspired by the general principle that party representatives should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense". They was produced by a task force set up by the IBA in 2008, and informed by a survey of members which showed "strong support" for guidance on party representation matters.

The guidelines include a general prohibition on 'ex parte' communications, which are those where the other party to the arbitration is not present, between a party representative and an arbitrator after the arbitrator has been appointed. Representatives are also subject to a general principle of "candour and honesty" in evidence and other submissions provided to the tribunal. The guidelines also deal with information exchange and document disclosure, and require representatives to inform clients of the need to preserve documents and emails that are potentially relevant to the arbitration.

The guidelines are based on consent, and can be adopted by parties in whole or in part by mutual agreement. They are not intended to take precedence over arbitral rules or otherwise applicable laws. The guidelines can also be applied by arbitral tribunals at their discretion after consultation with the parties, and give tribunals a broad power to penalise representatives for misconduct "in order to preserve the fairness and integrity of the proceedings".

Arbitration law expert John Gilbert said that the creation of a "code of ethics" for counsel acting for parties in arbitration was a topic that had been widely discussed by the international arbitration community in recent years. The new IBA guidelines were the "first attempt" at creating such a code by members of the community, he said.

"To be successful, the guidelines will need to have met the challenge of formulating an approach that is acceptable to parties from a wide range of cultural and legal backgrounds but without simply representing the lowest common denominator acceptable to all," he said. "Of particular interest from this perspective are the guidelines on issues where currently a wide variety of different approaches is adopted."

"One example of this is the guidelines on information exchange and disclosure and, in particular, the proposed requirement on counsel to inform clients of the need to preserve potentially relevant documents. Another example is the guidance relating to working with witnesses and the acceptance that counsel may work with witnesses to prepare them for their testimony and pay them to compensate them for the time lost in giving evidence. In both of these examples, the guidelines reflect current widely accepted practice but will represent a departure from the norm for some parties," he said.