Brief Introduction to IBA Guidelines on Party Representation in International Arbitration

An obligation or duty bearing on a Party Representative is an obligation or duty of the represented Party, who may ultimately bear the consequences of the misconduct of its Representative. 

There exists uncertainty regarding what rules govern party representation in international arbitration, the applicable rules and norms may include those of the party representative’s home jurisdiction, the arbitral seat, and the place where hearings physically take place.  Such uncertainty may be aggravated when individual counsel working collectively, either within a firm or through a counsel relationship, are themselves admitted to practice in multiple jurisdictions that have conflicting rules and norms.  Rules and norms developed for domestic judicial litigation may be ill-adapted to international arbitral proceedings. Therefore, instances exist where differing norms and expectations may threaten the integrity and fairness of the arbitral proceedings. 

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 guidelines are of contractual nature, they are not intended to displace otherwise applicable mandatory laws, professional and disciplinary rules, or agreed arbitration rules, in matters of party representation.  They may be adopted the entirely or partly by parties’ agreement. The tribunal’s authority to rule on matters of Party Representation is deprived from the tribunal’s own discretion, before making such determination, the tribunal should give the parities an opportunity to express their views. If the tribunal determine that they have such authority, subject to any applicable mandatory rules, the tribunal need not to be limited by a choice-of-law rule or private international law analysis to choosing among national or domestic professional conduct rules, instead, arbitral tribunal may also apply the Guidelines in their discretion. These Guidelines offer an approach designed to account for the multi-faceted nature of international arbitral proceedings. (待续）

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