The IBA Guidelines on Party Representation in International Arbitration: A Plea for Caution
The present article seeks to critically review the IBA Guidelines on Party Representations in International Arbitration in their attempt to address the vast and complex topic of counsel’s ethics.The author’s plea for caution turns on two main concerns. First is the mixing of the issues, inequality of arms, on the one hand, and counsel’s unethical conduct per se, on the other. Second is the way in which the Guidelines address them, by (a) seeking to define a uniform set of standards or level playing field that is in some worrying respects very much a North American level playing field; and (b) entrusting the arbitral tribunal with the power to sanction counsel in case of non-compliance, a role for which tribunals are not equipped and which may jeopardize their primary function, that of resolving a particular dispute between particular parties represented by particular counsel in a particular legal environment. The article also discusses the approach adopted by the LCIA in its revised 2014 Arbitration Rules and the current draft of the ICDR Code of Conduct for a Party and its Representative.