Setting out its Guidelines on Party Representation in International Arbitration in October 2013, the International Bar Association (IBA) neatly summed up the difficulties facing tribunals. Counsel from different jurisdictions are "subject to, or informed by, diverse and potentially conflicting rules and norms", which the body was concerned could potentially "undermine the fundamental fairness and integrity of international arbitral proceedings".
The London Court of International Arbitration (LCIA), in its 2014 rules, also recognised the issue by including General Guidelines for the Parties’ Legal Representatives in an annex; alongside other provisions, these guidelines state that counsel should avoid engaging in activities intended unfairly to obstruct the arbitration or jeopardise the finality of the award. The 2014 rules also empower the tribunal to sanction counsel for inappropriate conduct, with penalties ranging from a written reprimand to a referral to their home jurisdiction’s professional or regulatory body.
Clearly, there’s an issue then.
Both the IBA and LCIA are attempting to solve the problem identified by Johnny Veeder QC in the 2001 Goff Lecture: "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."
It is beyond the scope of this piece to look at the substance of the IBA or LCIA guidelines, which cover serious professional misconduct, such as relying on false evidence – though worth noting that the IBA provisions are voluntary and have to be agreed to by the parties before they are adopted. But the fact that both the IBA and LCIA have come up with guidelines in recent years demonstrates that there is a problem.
So what are the behaviours that tribunals dislike but which fall short of breaching the rules?
Speaking to a number of arbitrators and counsel – on background, of course, given the nature of the subject matter – a consensus emerged around tactics which are counterproductive.
Practitioners agree that tribunals are essentially interested in getting to the heart of the issues in dispute so the number one turn off is unnecessarily aggressive behaviour by counsel. "The single most valuable currency that counsel have is credibility," says one senior arbitrator. "Issues are very rarely black and white so the tribunal wants to get to the truth. Counsel who help the tribunal get to grips with issues build that credibility, while parties that aggressively argue every point without thinking about how it helps the tribunal reach the outcome can undermine their position. In fact, if counsel aggressively take weak points it can create the impression that they know they’ve got a bad case."
The experts note that this might not be counsel’s fault as they are under instruction from clients who want to see every point argued. "Some GC’s like to see a really aggressive approach but ultimately taking every point dilutes your case and undermines credibility."
Lawyers who are used to jury trials can irritate tribunals by adopting a theatrical approach, which is deemed inappropriate before a sophisticated panel – arbitrators agree that moderation is actually an incredibly effective way of getting your case across. Robust but not over the top.
For arbitrators with a civil law background, aggressive cross-examination of witnesses doesn’t go down well. In a common law court, lawyers will often aggressively try to catch out a witness in some inconsistency to undermine their overall credibility even if the inconsistency is not central to the case. "For civil law arbitrators that style of cross-examination doesn’t work at all," says one QC. "They are outcome-focused and want the evidence to go towards making the award. They are likely to simply ignore that style of cross-examination."
When it comes to document exchange and correspondence the advice remains the same. When the tribunal is copied in on all exchanges between the parties, they really don’t want to see petty tit-for-tat behaviours. "Tribunals do not want to get dragged into the minutiae with aggressive exchanges between the parties," says one common law arbitrator. "A pragmatic approach creates a positive impression of that party with the tribunal."
There is still not a single, global set of rules governing counsel’s behaviour in international arbitrations, but when it comes to how parties should present their case there is a clear consensus. Tribunals are outcome-focused and want to get to the heart of the issues so they can make the appropriate award. Parties who are overly aggressive running weak points can make the tribunal’s job more difficult and ultimately damage their own cause.
So counsel face a difficult balancing act – they need to make sure that clients are happy that the case is being argued forcefully, while at the same time helping the tribunal get to the heart of the issues so that they can make the appropriate award. As one practitioner notes, it helps to have sophisticated clients.
Philip McMullan is a writer and researcher.