Reflections on the IBA Guidelines on Party Representation in International Arbitration

Mark Friedman
Co-Chair, IBA Arbitration Committee, 2011–2012; Co-Chair, International Dispute Resolution Group, Debevoise & Plimpton, New York

Imagine that a Peruvian lawyer represents a Spanish party in an arbitration against a Japanese company, represented by lawyers from France and Australia. The arbitration is seated in London, governed by New York law and before arbitrators from Brazil, Nigeria and Switzerland.  A procedural issue with ethical dimensions arises, such as can one of the lawyers have an ex parte communication with one or several arbitrators, can a lawyer prepare a fact witness for oral testimony, or can a party engage new counsel on the eve of a long-planned hearing that provokes a conflict for the arbitrator. Where would you look for guidance?

Before the Party Representation Guidelines the answer was: nowhere. There was little to no guidance on such questions, although they arose repeatedly in international arbitration. Existing procedural rules did not address them.  They were not regulated by the law of the arbitral seat.  And, even more confusingly, parties, counsel and arbitrators often had very different expectations, traditions or ethical rules that might inform their instinctive answers to such questions.    

Those circumstances planted the seeds from which the Party Representation Guidelines grew.  After several years of study and public consultation, a Task Force of 23 senior, diverse lawyers created voluntary, opt-in guidelines for a basic level of party representatives’ conduct in five aspects of international arbitration – (i) appearances before a tribunal; (ii) communicating with arbitrators; (iii) submissions to the tribunal; (iv) disclosure; and (v) working with witnesses and experts. Their animating principle is both simple and profound: that party representatives 'should act with integrity and honesty and should not engage in activities designed to produce unnecessary delay or expense' or obstruction.  

Despite their laudable objective and rather modest scope, the Party Representation Guidelines attracted considerable controversy.  Some of this criticism was based on a misunderstanding of the project, namely that it sought to impose a worldwide set of ethical obligations, some of which might even conflict with ethical rules applicable to individual lawyers in their home countries.  For example, some English lawyers considered that Guideline 24, which provides that a party representative 'may . . . meet or interact with Witnesses and Experts in order to discuss and prepare their prospective testimony' was incompatible with English restrictions on barristers or solicitors 'coaching' witnesses. 

The Guidelines, however, did not compel those English lawyers to do anything they considered inappropriate under their own regulatory system.  And they could not have done so even if the Arbitration Committee had wanted to be that imperialistic. The Guidelines were, after all, entirely voluntary and had to be agreed upon by the participants to a particular arbitration.  The Guidelines’ accompanying Commentary even explicitly stated that they do not 'displace otherwise applicable mandatory laws, professional or disciplinary rules, or agreed arbitration rules …'  

Instead, the Guidelines aspired to at least trigger the right conversation about what would and would not be permitted in a particular arbitration. In a case where the claimant was represented by English lawyers who considered that they could not prepare witnesses for testimony, and the respondent by lawyers from the US or other jurisdictions that had no such prohibition, arguably the respondent had a procedural advantage.

Guideline 24 at least called attention to this potential difference of perspective and thereby provided a basis for the participants to discuss how that arbitration should be conducted. The participants could ultimately decide that they could accept and apply Guideline 24, or modify it so that it forbade such contacts with witnesses, or omit the issue from the case procedure, or find some other compromise solution.  

Some other critics understood and perhaps even endorsed the Guidelines in principle, but thought they went too far in practice. For example, Guideline 12 states that in a case where document production is likely, a party representative 'should inform the client of the need to preserve, so far as reasonably possible, Documents' so that they are not deleted or discarded while the arbitration is pending. Some people considered that guideline to be too 'American' or to impose on a lawyer how he or she should advise a client. This may have been a complaint not about the substance of the provision but that it came from a guideline. When pressed, it was hard to find any lawyer who would say that he or she would advise a client to go ahead and delete potentially relevant evidence while an arbitration is pending.

Like any good compromise, there were also critics who thought the Guidelines did not go far enough.  Guideline 9 states that a party representative 'should not make any knowingly false submission of fact to the Arbitral Tribunal.' There was robust debate about whether this admonition should also apply to 'materially misleading' statements or to submissions of 'controlling law' as well as of fact.  Many common law practitioners take it as an article of faith that they cannot knowingly misstate principles of controlling law, which in practice typically means authoritative court decisions that are binding precedents. However, some civil law practitioners contributed a different perspective, and it was not that they wanted to remain free to knowingly misstate the law. Rather, they pointed out that civil law systems often have less clear indications of what is binding law outside of the statutes themselves.  This concern about the law being somewhat indeterminate created risks that an admonition about knowingly misrepresenting the law could have been subject to abuse, so it did not become part of the guidelines.   

Hopefully the decade that has passed allows us to now see the Guidelines for what they are and the promise they hold. They offer some basic, thoughtful and generally prudent solutions for recurring procedural issues, which the participants in any given arbitration can accept, reject or modify as fits the needs of that individual case. They are the start of a conversation, not necessarily the end of it. And in this respect the Guidelines have been highly successful, enriching discussions and arbitral practice on issues that previously had been largely ignored.