IBA Guidelines on Party Representation in International Arbitration: Adding clarity or confusion?

Over recent years a key criticism of the functionality of international arbitration has been the abundance of rules that apply to proceedings and the consequent confusion this causes. Where proceedings are conducted in domestic settings, parties can be reassured that their representatives will be familiar with the applicable rules and share the same ethical obligations. This comfort is of little assistance within an international arbitration. The international nature of such proceedings attracts a vast range of rules; these may include those of the arbitral seat, the location of the hearing (which may be different to the arbitral seat), the national rules applicable to the parties and their lawyers within their home jurisdictions and the substantive law of the contract.

The International Bar Association (IBA) has flagged the potential for confusion and uncertainty that can be caused by this raft of diverse and potentially conflicting norms. In 2008 the IBA Arbitration Committee established a task force composed of global experts to look into this area and draft new guidelines, the task force was predominantly made up of American and European specialists. The new Guidelines, the “IBA Guidelines on Party Representation in International Arbitration” were released on 25 May 2013. The Guidelines cover the following key areas: Application of the Guidelines; Party Representation; Communications with Arbitrators; Submissions to the Arbitral Tribunal; Information, Exchange and Disclosure; Witnesses and Experts; and Remedies for Misconduct. Previously the IBA has published Guidelines on Conflicts of Interest in International Arbitration (2004), Rules on the Taking of Evidence in International Arbitration (2010) and Guidelines for Drafting International Arbitration Clauses (2010). The Rules on the Taking of Evidence in International Arbitration were particularly well received amongst international arbitration specialists. The nomenclature of ‘Guidelines’ instead of rules suggests that the approach of the IBA has become somewhat diluted since the 2010 publication.

The reaction to the new Guidelines has been largely positive with many commentators praising the flexibility and promotion of certainty that the document offers. The Guidelines are of a contractual nature, therefore the parties, or an arbitral tribunal with authority, may elect to adopt the Guidelines, ignore them or be inspired by them. In reality, regardless of whether expressly adopted by the arbitration’s terms of reference the Guidelines will infiltrate proceedings due to their overarching nature and influence. The Guidelines may be adopted in whole or part. Guideline 3 states that they are “not intended to displace otherwise applicable mandatory laws, professional or disciplinary rules, or agreed arbitration rules”. This provision illustrates that the Guidelines are intended to provide a best-practice touchstone for party representatives in an international arbitration.
However, there is a risk that the addition of further guidance to a landscape that is already littered with sources of rules, best practice guidance and advice will cause further confusion and procedural chaos. Michael Schneider, the President of the Swiss Arbitration Association, has expressed deep concern that the document could “risk becoming a major source of procedural motions and disruption« [1].  This concern is perhaps a little extreme, given that the Guidelines are deemed to be of a contractual nature. However, the addition of further Guidelines in an attempt to clarify the area involves inherent risks, especially as some of the ‘best practice’ content appears to be a restatement of provisions that are either mandatory or widely accepted within most jurisdictions.

Within the document there are examples of Guidelines that both support and contradict Schneider’s statement. For example, Guidelines 7-8 detail when ex parte communications are permitted with the arbitrator(s), this helpfully explains when such contact is appropriate. It states that such communication is permitted when ascertaining the arbitrator’s availability or expertise prior to the completion of the arbitral tribunal, and, that it is prohibited in relation to more general communications regarding the arbitration process and should be avoided as much as possible. Guidelines 26-27 will aid the efficient conduct of proceedings; providing detail on the remedies for misconduct and factors to take into account when addressing such issues. 

Alongside these valuable provisions the IBA Commission has included more curious provisions. For example, Guidelines 9-11 reiterate that false submissions of fact should not be made to the arbitral tribunal. The inclusion of this provision is slightly confusing as the inappropriateness of submitting false submissions of fact is not an area that really required clarification it is common sense.

Overall the Guidelines aim is to offer helpful clarification of an area that is becoming increasingly confused by varying rules; however the ultimate success of the IBA Guidelines on Party Representation will depend on whether parties or tribunals choose to adopt them in their proceedings. The impact of these Guidelines will probably be more limited within America and Europe where lawyers, professionals and arbitrators are generally subject to mandatory provisions that address the same principles as those featured in the IBA publication.