INTERNATIONAL ARBITRATION 1/3LY
LCIA AND IBA GUIDELINES: PUSHING THE BOUNDARIES ON CONDUCT?
“To the question: What are the professional rules applicable to an Indian lawyer in a Hong Kong arbitration between a Bahraini claimant and a Japanese defendant represented by New York lawyers, the answer is no more obvious than it would be in London, Paris, Geneva and Stockholm. There is no clear answer...” This conundrum, identified by Johnny Veeder QC in the 2001 Goff lecture, has remained unanswered for many years. We examine two potential solutions: first, the imminent amendments to the London Court of International Arbitration (LCIA) Rules; and, secondly, the ‘Guidelines on Party Representation in International Arbitration’ recently produced by the International Bar Association (IBA). We compare and contrast these two options – both their content and likely impact – and comment on the possible journey towards a lasting solution. THE NEW LCIA RULES In relation to the above conundrum; if the scenario was an LCIA arbitration, there will soon be a clear answer to the code of conduct applicable to counsel – at least to the extent covered in the new LCIA Rules. It is perhaps apt that Johnny Veeder QC was on the subcommittee which drafted them: “General Guidelines for the Parties’ Legal Representatives” appear as an annex to the new LCIA Rules. In summary, the guidelines state that counsel should not do the following: (1) engage in activities intended unfairly to obstruct the arbitration or jeopardise the finality of the award (for example, by repeated challenges which the legal representative knows are unfounded); (2) make false statements; (3) rely upon false evidence; (4) conceal any document ordered to be produced by the tribunal; or (5) make unilateral undisclosed contact with any member of the arbitral tribunal. The LCIA Guidelines are neither long nor detailed, with the annex outlining the Guidelines comprising less than a page. This makes them easy to follow, and accessible to a multitude of different jurisdictions. However, there is a danger that their brevity could be misconstrued as a signal that a particular misconduct might go unpunished if not specifically mentioned in the Guidelines. In response to such an interpretation, it is worth noting that the Guidelines do not operate in a vacuum; and expressly stipulate (at paragraph 1) that they do not derogate from any “mandatory laws, rules of law, professional rules or codes of conduct if and to the extent that any are shown to apply to a legal representative appearing in the arbitration”. By way of example, English solicitors and barristers are subject to far stricter and more comprehensive codes of conduct enforced by their respective regulatory bodies.
BY SAPNA JHANGIANI AND KHALED MOYEED, LEGAL DIRECTOR AND ASSOCIATE AT CLYDE & CO LLP
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