This article was originally published in the February 14, 2014 issue of the Lawyers Weekly published by LexisNexis Canada Inc.
Barry Leon and John Siwiec
When parties and counsel in international arbitration are from different jurisdictions and legal cultures, and are subject to different ethical rules and norms – there is a real risk that one side will be materially disadvantaged.
To address these issues, the International Bar Association last May adopted the IBA Guidelines on Party Representation in International Arbitration. While the guidelines are focused on international arbitration, those involved in domestic arbitration in Canada may find some them useful, particularly those which address matters not addressed by rules of professional conduct, bar association guidelines and jurisprudence.
The rules and norms that could apply to the representation of parties in international arbitration may include those of each counsel’s home jurisdiction, the seat of the arbitration, and location in which the hearings take place.
Parties may adopt the guidelines in their arbitration agreement or at a preliminary stage of the arbitration, and an arbitral tribunal may use them as an aid where it determines that it has authority to rule on matters of party representation. Whether the tribunal has authority may depend on the parties’ arbitration agreement and the law at the arbitration’s seat.