Originally from Soft Law in International Arbitration, Second Edition

PREVIEW PAGE

Introduction

Civility in the practice of law is an essential attribute of maintaining the rule of law. The Guidelines originated from a concern that there have been repeated examples in international arbitration practice of conduct that falls below minimum civility standards and that the arbitration community should take action in response to demonstrate our shared commitment to practice international arbitration in a fair and legitimate manner. The Guidelines are not intended as mandatory rules, but as guiding principles of civility in international arbitration.

These Guidelines were developed by a Task Force of experts in the practice of international arbitration with experience from diverse jurisdictions.

The Task Force first carried out a survey of professional standards, ethical rules, and civility guidelines from a wide range of jurisdictions. The survey revealed a broad consensus as to general principles, evidencing a common acceptance of the guiding principles of civility expected before courts and arbitral tribunals. Nevertheless, an evident gap remains in the international arbitration space where there is no official instrument memorializing the principles of civility in the context of an international arbitration proceeding. As the existing instruments do not fully reflect the specific setting, blend of cultures and situations in which international arbitration is employed, the Task Force prepared these civility Guidelines.

Although many if not all of the principles may apply equally in the context of both domestic arbitration and international arbitration, they were developed for use in the specific context of international arbitration.

In the unlikely event of conflict between local rules and the Guidelines, applicable mandatory rules prevail. The Guidelines are not intended to displace other rules and do not seek to regulate questions that are governed by other applicable instruments and rules, such as the circumstances that give rise to a conflict of interest or that may call into question the integrity of the arbitration, or the nature of disclosures required from participants in an international arbitration.

The Guidelines are not intended to serve as an autonomous basis for sanctions where no other basis exists and should not provide grounds for frivolous attacks on counsel or arbitrators nor are they intended to increase litigiousness or to exacerbate disputes between parties. They also are not intended to discourage fair and vigorous advocacy. Rather, the Guidelines aim to articulate prevailing expectations as to the standards of practice in international arbitration. Whether a participant’s conduct runs afoul of these Guidelines will necessarily be a fact-specific inquiry based on the circumstances at hand.

While the Guidelines are not intended as mandatory rules, they may be incorporated by parties in their arbitration agreement, adopted by arbitral institutions, or included by arbitral tribunals in a procedural order or in the terms of reference where appropriate.

The Guidelines are organized in four sections: (I) general guidelines for all participants in an international arbitration (counsel, arbitrators, staff of arbitral institutions acting in the particular case, tribunal secretaries, witnesses, experts, court reporters, interpreters, translators, etc.); (II) guidelines for party representatives; (III) guidelines for arbitrators; and (IV) guidelines for other participants. Each sub-section sets out several general principles followed by explanatory remarks.

For the purpose of these Guidelines, “participants” in an international arbitration means the parties and their representatives, counsel, arbitrators, tribunal secretaries, personnel employed by arbitral institutions who act in a particular case, fact witnesses, experts (either tribunal-appointed or party-appointed), professionals, and all other persons participating in the arbitration proceedings in any capacity.