The International Bar Association recently approved and released the IBA Guidelines on Party Representation in International Arbitration. The release of these guidelines, which are expected to be widely applied, is an important development in international arbitration, including international procurement and construction disputes.
The guidelines are intended to create more uniformity in conduct among counsel who otherwise have varying ethical obligations and ensure that all counsel act with integrity and honesty, and avoid any tactic aimed at obstructing the arbitration process. The Guidelines are aimed at preserving the integrity and fairness of the arbitration by leveling the playing field and increasing the transparency and predictability of the proceedings.
The guidelines may be adopted by the parties or used as guidance by the arbitrators and do not to displace any mandatory law or individual counsel ethical obligation imposed by any jurisdiction. Further, the guidelines do not vest arbitral tribunals with powers otherwise reserved to bars or other professional bodies.
The Guidelines are the work product of a widely representative Task Force that was constituted in 2008. The IBA Task Force conducted a survey in 2010, which showed strong support for the development of guidelines for party representation. After two more years of work, the Task Force proposed a draft set of proposed Guidelines, which was submitted to a consultation process amongst arbitration institutions and practitioners. An amended version of the Guidelines was later circulated to all members of the Arbitration Committee for consideration.
The Guidelines address a limited number of questions relevant to the conduct of the arbitration proceedings, including the extent to which it is permissible for counsel to have ex parte contacts with the arbitrators, the duty of candour of counsel in its submissions to the arbitral tribunal and the presentation of witness and expert evidence, the duty of counsel to cooperate in good faith in the process of document production, the role of counsel in preparing witness and expert testimony, as well as the remedies available to the arbitral tribunal in case of misconduct.
A copy of the guidelines is available at
http://www.ibanet.org/LPD/Dispute_Resolution_Section/Arbitration/Default.aspx.
Albert Bates, Jr. is vice chair of Duane Morris' Construction Group. While Mr. Bates focuses his practice on construction litigation and domestic and international arbitration matters, he also advises clients on project planning and execution strategies, project management and project controls strategies, change management and claims resolution on large construction projects.
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