ASA Board Position on IBA Guidelines on Party Representation - Appendix A - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37
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October, 2015
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Originally from Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37
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ASA Board Position on IBA Guidelines on Party
Representation
IBA GUIDELINES
ON PARTY REPRESENTATION IN INTERNATIONAL
ARBITRATION
COMMENTS AND RECOMMENDATIONS
BY THE BOARD OF THE SWISS ARBITRATION
ASSOCIATION (ASA)
Since 2013, several discussions have taken place within the ASA
Board on the IBA Guidelines on Party Representation in International
Arbitration (“the Guidelines”). ASA Board members have taken up
this subject at various arbitration events. The recent initiative of the
LCIA, which is proposing general guidelines as an Annex to its new
Arbitration Rules, has also been duly noted, with great interest. The
ASA Board recognizes the importance of the role of counsel in
international arbitration and is aware of differences in professional
practices and ethics. Without overestimating the practical importance
of these differences, ASA shares the view of the IBA and its Arbitration
Committee that these differences deserve attention; it respects the
impressive work and thought that has gone into the preparation of the
Guidelines.
However, the ASA Board has serious reservations about the
Guidelines. These reservations relate not just to some of the provisions
of the Guidelines but more generally arise from the approach adopted
for dealing with these differences. ASA believes that three questions
should be asked: (i) do the status of party representatives and any
differences in the applicable rules and practices require additional
measures? (ii) do the measures proposed provide the remedy for any
problems identified? and (iii) do the remedies proposed really do more
good than harm? ASA believes that there are few, if any situations
concerning party representatives which require rules on party
representation, applicable in the arbitration. The measures proposed
do not provide adequate relief and in particular are unlikely to resolve
a possible detriment to a party from situations where the playing field
may not have been level. Above all, the Guidelines risk doing
considerable unintended harm, not least to the detriment of the users.
ASA, therefore, seeks to engage a broader consultation on the
Guidelines and their content. In the present state of its deliberations it
summarises its reservations along the following lines:
1. The Guidelines place on arbitral tribunals responsibilities and
require decisions on issues which are alien to the arbitration
process and which should not be mixed with it. They do so in
particular by providing “remedies for misconduct”
(Guidelines 26-27) to be applied by arbitral tribunals.
1.1 The conduct of lawyers is normally regulated by their
(domestic) professional organisations, which generally
also are the bodies which apply sanctions in case the
regulations are breached. Courts and arbitral tribunal
before which lawyers appear as representatives of their
clients are responsible for a fair and orderly conduct of
the proceedings. Normally, in a very significant number
of jurisdictions, they do not assume responsibility for the
enforcement of rules concerning the professional ethics of
counsel.
1.2 The separation between the organisation which issues
and enforces the professional rules of lawyers’ conduct,
on the one hand, and the courts and tribunals before
which the lawyers appear may be considered as an
essential feature of the proper administration of justice in
a significant number of jurisdictions. Indeed, the two
types of functions are arguably incompatible: the person
who decides the dispute presented by counsel of the
parties should not at the same time decide whether this
counsel complied with ethical rules of the profession.
1.3 The Guidelines merge these two functions. This is
problematic for both of them. An arbitral tribunal which
is called upon to deal at the same time with the case
brought by the parties and with complaints against
counsel who argue the case may find it difficult to
preserve the confidence in its impartiality by the parties
and their counsel.
1.4 The merger of these two functions is particularly
problematic with respect to those provisions of the
Guidelines which concern the relations between the party
representative and his or her client. Requiring the arbitral
representative and his or her client. Requiring the arbitral