Business Conflict Blog by Peter Phillips
The International Bar Association has been responsible for several definitive guidelines to assist practitioners in international arbitration. These include the 2010 Guide for Drafting International Arbitration Agreements, the 2010 Rules for Taking of Evidence, and the 2004 Guide on Conflicts of Interest. To this we now add the IBA Guidelines on Party Representation in International Arbitration, adopted by the IBA Council on May 25, 2013.
Arbitration Committee Co-Chairs Alexis Mourre and Eduardo Zuleta explain these Guidelines in the November 2013 issue of Dispute Resolution International. They explain that, as Guidelines, they are contractual in nature and apply only when the parties have agreed and where the arbitrators wish to rely upon then (having determined that they have the authority to rule on matters of party representation).
Among the situations addressed are (a) where the panel has been constituted and a party representative is subsequently appointed who creates a conflict with one of the tribunal; (b) where a party representative attempts to communicate with an arbitrator concerning the arbitration ex parte; (c) the duties of party representatives to the tribunal with respect to assertions made in submissions; (d) the responsibilities of party representatives with respect to documents and information in her possession or in the possession of her client; (e) the relationship between counsel and witnesses or experts, “specifically with the issue of witness preparation;” and (f) potential remedies for counsel misconduct.
Of particular interest to me was the treatment of counsel’s “preparation” of witnesses, a process that is fully accepted in American litigation but frowned upon elsewhere. Guideline 20 provides: ”A Party Representative may assist Witnesses in the preparation of Witness Statements and Experts in the preparation of Expert Reports.” Guidelines 21 and 22 articulate the concerns regarding the practice by providing that “A Party Representative should seek to ensure that a Witness Statement reflects the Witness’s own account of relevant facts, events and circumstances [and that] an Expert Report reflects the Expert’s own analysis and opinion.”
From time to time one dreams up “the old days” without regard to the caution that nostalgia ain’t what it used to be. But am I right that the “old days” of international arbitration practice included a reliance on documents rather than witnesses, cross-examination of live witnesses without coaching by counsel; and reports of joint experts rather than reliance on vying experts whose conclusions simply restate the arguments of the party that hired them? These attributes seem to have fallen away (if in fact they ever really existed in the first place) in favor of American-style litigation practices. The fact that they now appear in such a consensus-styled and authoritative document as the IBA Guidelines leads me to acknowledge that, in all human endeavor, one must not hold too tightly to either the past or the present.
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