Most of the interactions between the parties and the tribunal are undertaken by counsel for and on behalf of the party that they represent. Most will conduct the reference with integrity, honesty and observe notions of fair play. Regrettably, some (and it is a small minority) may either collude with the party to seek to mislead the tribunal or may be complicit in disrupting the process of the reference.
Such conduct, in fact, does little or nothing to help the party in whose name the conduct is undertaken or the cause that that party seeks to advance. Nevertheless, the fact that it apparently does occur raises three fundamental questions: what standards should counsel observe; is there any sanction that can be imposed on a defaulting counsel and, as the ultimate sanction, can a tribunal deprive a party of the counsel of its choice.
A. The IBA Guidelines on Party Representation in International Arbitration
The IBA Guidelines on Party Representation in International Arbitration contain, as ever, much good sense. The Guidelines are grouped into the following categories (with the broad obligations covered):
Party Representation—this covers identifying themselves at the earliest opportunity; not accepting an appointment when a relationship exists with a member of the tribunal that would create a conflict of interest and power to the tribunal to exclude a representative if his involvement would imperil the integrity of the proceedings.
Communications with Arbitrators—not to engage in ex parte communication with the tribunal but appropriate ex parte communications are permitted with prospective arbitrators and with a party appointee on a chair appointment.