WHAT’S NEW ABOUT PARTY REPRESENTATION IN ARBITRATION?

Recently, the International Bar Association (IBA) developed new Guidelines on Party Representation in Arbitration for parties and their representatives to determine their conduct during proceedings. The work group tried to find a uniform set of ethical standards of professional conduct in arbitral proceedings, to develop a compromise between common law and civil law countries.

The Guidelines are based on the main principle that a party’s representative should not cause unnecessary delay or expenses; the Guidelines also emphasised that it is forbidden to use tactics to obstruct the arbitral proceedings.

Structure

The Guidelines are divided into nine chapters composed of: a preamble, definitions, the application of guidelines, party representation, communications with arbitrators, information exchange and disclosure, witness and experts and, finally, remedies for misconduct.

The Preamble explains the purpose of its Guidelines, the necessity of developing such rules and on what basis. Those Guidelines are aimed at making the proceedings more transparent and can be adopted in whole or in part by the parties or arbitral tribunal.

Important issues

Several important terms are explained in the ‘definitions’ chapter, among others. For example, the definition of ‘misconduct’ is provided as “breach of those rules or any other action that the Tribunal deems to be against the duties of Party Representative”. The term ‘knowingly’ is also clarified as “actual knowledge of the fact or the question”. However, the term ‘false’ should also be defined. For example, when a party’s representative is deleting parts of the witness statement – will this constitute a breach of the guidelines? Since on the one hand the witness statement in this scenario is still technically correct, it might not fall into the ‘false’ category, whilst on the other hand, such an intentional ‘exclusion’ of random parts of the witness statement can obviously twist the facts of the case and mislead the tribunal.

Jul-Sep 2013 issue

Association for International Arbitration (AIA)