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New IBA Guidelines of Party Representation in International Arbitration

The International Bar Association ("IBA") recently released the "IBA Guidelines on Party Representation in International Arbitration" ("Guidelines").  According to the preamble, the Guidelines are an attempt at normalizing the conduct of counsel relating to party representation in the face of the "diverse and potentially conflicting rules and norms" commonly found in international arbitration.  By adopting the Guidelines, parties subscribe to "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."

Of course, parties must adopt the Guidelines by agreement so that they may take effect.  Even then, the Guidelines explicitly state that they are subordinate to the rules of the arbitral institution, and, more importantly, the laws - including professional and ethical rules - of the attorneys' home jurisdictions.  The Guidelines also include commentary on each specific guideline that seeks to further explain the application of and the reasoning behind each specific guideline.

The Guidelines include many practices that are familiar to attorneys, including prohibitions on making knowingly false submissions of fact, tendering evidence known to be false, and hiding or destroying evidence. Although the Guidelines also prohibit ex parte communications between counsel and arbitrators, they also carve out explicit exceptions for the purpose of selecting arbitrators, with the caveat that the prospective arbitrator cannot be asked for his or her view on the substance of the dispute.

Parties adopting these Guidelines should benefit from a normalized standard for party representation, particularly in international arbitrations where opposing counsel are from different jurisdictions, each with their own norms and regulations for professional conduct.

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