The IBA Guidelines on Party Representation in International Arbitration by Laura Lozano

Laura Lozano

The International Bar Association adopted by a resolution of the IBA Council 25 May 2013, the IBA Guidelines on Party Representation in International Arbitration.

The IBA’s International Arbitration Committee with currently 2,641 members from 115 countries and its Task Force on Counsel Conduct published a set of 27 guidelines, addressing Party Representation,  Communications with Arbitrators, Submissions to the Arbitral Tribunal, Information Exchange and Disclosure, Witnesses and Experts and Remedies for Misconduct.

The guidelines are inspired by the principle that party representatives should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense, including tactics aimed at obstructing the arbitration proceedings. The duty of candour or honesty owed to the Tribunal and the purpose to preserve or restore the fairness and integrity of the arbitration are present along the guidelines.

Parties may adopt the Guidelines or a portion thereof by agreement as well as arbitral tribunals may apply them at their discretion, subject to any applicable mandatory rules.

For instance, the changes in Party representation along the course of the arbitration may, because of conflicts of interest between a newly-appointed Party Representative and one or more of the Arbitrators, threaten the integrity of the proceedings. If there is such conflict of interest and the Arbitral Tribunal considers excluding the new Representative, the Arbitral Tribunal may rely on the IBA Guidelines on Conflicts of Interest in International Arbitration( Guidelines 4-6).

Noteworthy, ex Parte Communications are limited to provide a general description of the dispute and obtaining information regarding the suitability of the potential Arbitrator (Guideline 9).

According to Guideline 13, a Party Representative should not make a Request to Produce Document, or object to a Request to Produce, when such request or objection is only aimed at harassing, obtaining documents for purposes extraneous to the arbitration, or causing unnecessary delay. Besides, regarding witnesses, a Party Representative should not invite or encourage a Witness to give false evidence (Guideline 23). Interestingly, when imposing any remedy in respect of alleged Misconduct, it is important that the Arbitral Tribunal gives the Parties and the impugned Representative the right to be heard in relation to the allegations made (Guideline 27).

In a nutshell, the Guidelines are intended to preserve the fairness and integrity of the arbitration proceeding and parties and arbitral tribunals may adapt them to the particular circumstances of each arbitration.

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