In contrast to domestic judicial settings, where counsel adhere to a single set of clearly defined rules governing acceptable ethical conduct, for counsel in international arbitration, the situation is less straightforward. The conduct of party representatives in international arbitration may be governed by a variety of diverse and potentially conflicting rules and norms, and it is frequently unclear which ethical rules even apply. These can include the rules and regulations from the party representative's home jurisdiction, the rules of the arbitral seat, or the rules of the location where the hearings are held.
Even when the seat of the arbitration is outside the party representative's home jurisdiction, the relevant ethical rules of his or her "home bar" often continue to govern the party representative's conduct. This can cause further problems because it is not unusual for arbitration lawyers to be qualified in several different jurisdictions. In such a case, determining which "home jurisdiction" conduct rules apply or how to resolve any conflicts between them is not an easy task.
Considering that modern international arbitration is increasingly popular as a method for dispute resolution and is inherently international in scope, more and more parties are being exposed to or themselves engaging in "guerilla tactics", which can result in inefficient, unpredictable, and illegitimate adjudication.1 The problems that may and do arise in practice are:
- Double Deontology: when a lawyer is subject to conflicting ethical rules from multiple jurisdictions; for example, a lawyer might face a situation where complying with the ethical standards of one jurisdiction would result in a breach of the standards of another;
- Inequality of Arms: when one party's counsel is allowed to engage in conduct that the other party's counsel is not, due to differing ethical standards, which can lead to procedural unfairness and an unlevel playing field;
- Integrity and Fairness: ethical conduct is crucial for maintaining the integrity and fairness of the arbitration process; unethical behaviour, such as providing false statements or evidence, can undermine the trust in the arbitration mechanism and affect the enforceability of arbitral awards.
Over the past two decades, significant attempts have been made to address this problem and create specialised practices and procedures specifically tailored to international arbitration. Until the present date, however, there are no consistent ethical standards governing the conduct of counsel and party representatives on an international level. There is also a lack of agreement as to whether such formal rules are warranted or required.
2013 IBA Guidelines on Party Representation in International Arbitration
At an international level, the International Bar Association ("IBA") has dedicated significant efforts to establishing rules and guidelines to ensure consistent ethical standards across different jurisdictions. In 2013, the IBA issued Guidelines on Party Representation in International Arbitration (the "IBA Guidelines").2 The IBA Guidelines are based on the principle that party representatives should act with integrity and honesty, avoiding activities that cause unnecessary delays or expenses, and refraining from tactics intended to obstruct the arbitration process. They address various topics, including communications with the arbitrator, the submission of false statements or evidence, document production and preservation, the preparation of witness statements and expert reports, and remedies for misconduct. Specifically, the IBA Guidelines provide 27 guidelines in total that address the following topics:
- Scope of application of the Guidelines (Guidelines 1-3);
- General rules on Party Representation (Guidelines 4-6);
- Communication with arbitrators (Guidelines 7-8);
- Submissions to the tribunal (Guidelines 9-11);
- Information exchange and disclosure (Guidelines 12-17);
- Witnesses and experts (Guidelines 18-25);
- Available remedies for potential misconduct (Guidelines 26-27).
The term "guidelines" instead of "rules" was intentionally used by the creators to emphasise their contractual nature. The parties can agree to adopt the IBA Guidelines as a whole or in part. Arbitral tribunals may also choose to apply the IBA Guidelines at their discretion, provided they have the authority to do so and subject to any other mandatory rules that may apply.
The IBA Guidelines are, therefore, not legally binding unless the parties mutually agree on their application. Due to their non-binding nature, they are also often severely criticised. Even if the IBA Guidelines become binding through party agreement, parties could still argue that they are "guidelines" and merely suggestions that, in the event of non-compliance, cannot subject counsel to sanctions. Similarly, in situations where counsel from one jurisdiction considers their less proscriptive ethical rules to be more advantageous to their client, he or she may simply advise the client not to agree to their adoption.3 As a result, even though the IBA Guidelines might represent a pragmatic solution to the problem of differing ethical standards, they remain of rather limited practical efficacy.4 They can, however, provide useful guidance to arbitration practitioners who may be faced with an ethical dilemma. For example, suppose counsel is being pressured by his or her client to act in a manner in conflict with these ethical Guidelines. In that case, counsel may invoke them to demonstrate why a particular course of action the client wishes to take should not be taken.
A more serious and significant attempt to regulate ethical rules and a step forward from the IBA Guidelines was, in fact, made by the London International Court of Arbitration ("LCIA") in 2014, as explained immediately below.
Institutional Approaches to Counsel Ethics in Arbitration
Different arbitral institutions have taken different approaches to the ethics of party representatives. The reason is, as already explained, that many scholars, counsellors, and clients are still opposed to increased ethical regulation. The International Court of Arbitration (the "ICC"), for instance, as well as a number of other institutions, have chosen not to explicitly set out any firm ethical rules for party representatives, unlike the LCIA.
London International Court of Arbitration and Counsel Ethics
The approach taken by the LCIA is unique and different from the approach taken by most other institutions. First, the 2014 LCIA Rules included a broad good faith requirement similar to that included in the 2010 IBA Rules on the Taking of Evidence in International Arbitration.5 It was also the first arbitral institution to explicitly include ethical guidelines for counsel in an Annex entitled "General Guidelines for the Authorised Representatives of the Parties". The Annex explicitly states that each party must ensure that all its authorised representatives appearing before the Arbitral Tribunal agree to comply with the general guidelines set out in the Annex to the LCIA Rules. The Annex is inspired by and similar to the IBA Guidelines and consists of merely seven paragraphs, which, inter alia, provide the following:
- A legal representative should not knowingly make any false statement to the Arbitral Tribunal or the LCIA Court (paragraph 3);
- A legal representative should not knowingly procure or assist in the preparation of or rely upon any false evidence presented to the Arbitral Tribunal or the LCIA Court (paragraph 4);
- "During the arbitration proceedings, a legal representative should not deliberately initiate or attempt to initiate with any member of the Arbitral Tribunal [...] any unilateral contact relating to the arbitration or the parties' dispute, which has not been disclosed in writing prior to or shortly after the time of such contact to all other parties, all members of the Arbitral Tribunal (if comprised of more than one arbitrator) and the Registrar [.]" (paragraph 6).6
The sanctions for violations of the Annex are contained in Article 18.6 of the LCIA Rules. This article provides that the Tribunal has the discretion to order "any or all of the following sanctions against the legal representative (i) a written reprimand; (ii) a written caution as to future conduct in the arbitration; and (iii) any other measure necessary to fulfil within the arbitration the general duties required of the Arbitral Tribunal [.]".
The introduction of the Annex to the LCIA Rules in 2014 sparked significant debate at the time of its issuance. The international arbitration community's response was, generally, more positive than negative, given that this was the first instance of an arbitral institution including specific provisions governing the conduct of counsel. Yet, the Annex was also criticised for not using mandatory language and, like the IBA Guidelines, representing merely "empty rhetoric".7 However, the fact that the Annex was kept in the revised 2020 LCIA Rules suggests that most of the arbitration community has not considered this a negative development.
Hong Kong International Arbitration Center ("HKIAC") and Counsel Ethics
Even though the HKIAC Rules Revision Committee discussed the necessity of including some ethical standards for counsel when revising its 2018 Rules, it eventually chose not to do so. According to the HKIAC, in Hong Kong, barristers shall, in any event, abide by the Code of Conduct issued by the Hong Kong Bar Association, and solicitors shall abide by The Hong Kong Solicitors' Guide to Professional Conduct issued by the Law Society of Hong Kong.8 The Committee saw no need to explicitly include such ethical obligations in its Rules, unlike the LCIA.
Singapore International Arbitration Centre ("SIAC") and Counsel Ethics
In April 2018, the Singapore Institute of Arbitrators' Working Group issued Guidelines on Party-Representative Ethics (the "SIARB Guidelines"). The SIARB Guidelines are founded on the principle that party representatives should always act with honesty, integrity, and professionalism in advising and representing their clients, both towards their clients and the tribunal. However, the SIARB Guidelines have not been adopted by the Singapore International Arbitration Centre and, therefore, do not apply to arbitrations conducted under the SIAC Rules. They explicitly state that they do not replace any existing ethical standards or professional codes of conduct that may apply to party representatives. Their practical use is, therefore, rather limited.
Australian Center for International Commercial Arbitration ("ACICA") and Counsel Ethics
The Australian Center for International Commercial Arbitration has expressly included a reference to the IBA Guidelines in its 2021 ACICA Rules. Article 9.2 of the 2021 ACICA Rules expressly requires each party to use its best endeavours to ensure that its legal representatives comply with the IBA Guidelines.9 This provision is not novel, as it was already included in the previous 2016 ACICA Rules.10 The non-mandatory language, i.e., each party "shall use" its "best endeavours" to ensure compliance with the IBA Guidelines, again suggests its effectiveness to be rather limited. The explicit reference to the IBA Guidelines should, nevertheless, be seen as a positive development.
Conclusion
The ethical obligations of counsel in international arbitration are complex and derive from a combination of local rules, international guidelines, several codified institutional rules, and best practices. To overcome the challenges posed by these diverse sources, a unified effort towards harmonisation and the establishment of clear, universally accepted ethical standards is likely necessary. This would help maintain the integrity, fairness, and effectiveness of the international arbitration process. Both the IBA Guidelines and the LCIA Rules have attempted to address the problems with the current ethical framework. However, while many acknowledge the problem, there is a lack of consensus on how to address it and whether the formal regulation of ethical rules would be more helpful or harmful.
Footnotes
1. C. Bustos, Empty Rhetoric: The Failings of the LCIA's Ethical Rules for Legal Counsel and Alternatives, 7 Y.B. Arb. & Mediation 307 (2015).
2. For an overview of all the IBA Rules and Guidelines, see IBA Rules and Guidelines Regarding International Arbitration: An Overview).
3. J. Wessel & G. McAllister, Towards a Workable Approach to Ethical Regulation in International Arbitration, Canadian International Lawyers, Vol. 10, No. 2 (2015), p. 9.
4. J. Wessel & G. McAllister, Towards a Workable Approach to Ethical Regulation in International Arbitration, Canadian International Lawyers, Vol. 10, No. 2 (2015), p. 9.
5. 2014 LCIA Rules, Article 14.5; 2020 LCIA Rules, Article 14.2 (2020), "at all times the parties shall do everything necessary in good faith for the fair, efficient and expeditious conduct of the arbitration, including the Arbitral Tribunal's discharge of its general duties".
6. Annex to the LCIA Rules, paras. 3, 4 and 5.
7. C. Bustos, Empty Rhetoric: The Failings of the LCIA's Ethical Rules for Legal Counsel and Alternatives, 7 Y.B. Arb. & Mediation 307 (2015).
8. E. Williams, Institutional Approaches to Ethics in Arbitration, The Arbitrator & Mediator July 2022 (available at: https://williamsarbitration.com/wp-content/uploads/2022/08/Institutional-Approaches-to-Ethics-in-Arbitration.pdf)
9. 2021 ACICA Arbitration Rules, Article 9.2: "Each party shall use its best endeavours to ensure that its legal representatives comply with the International Bar Association Guidelines on Party Representation in International Arbitration in the version current at the commencement of the arbitration."
10. ACICA Arbitration Rules 2016, Article 8.2.
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