HSF experts contribute to ICCA Standards of Practice in International Arbitration

The International Council for Commercial Arbitration (ICCA) has recently released Guidelines on Standards of Practice in International Arbitration (Guidelines), which set out minimum standards of civility within the international arbitration community.  The Guidelines were prepared by the ICCA Task Force on Standards of Practice in International Arbitration (Task Force), which was co-chaired by Abby Cohen Smutny and Professor. D. Guido Santiago Tawil, and was made up of experts and practitioners in international arbitration, including Christian Leathley and David Arias of Herbert Smith Freehills.  This blog post provides a short background to the Guidelines, an overview and key takeaways, and a brief commentary.

Background

The impetus for the Guidelines arose from concerns regarding repeated examples in international arbitration of conduct that fell below the minimum standard of civility.  The Task Force was created to allow the arbitration community an opportunity to mobilise and ensure that arbitration is carried out in a fair and legitimate manner.

The Guidelines were the result of a comprehensive process.  The Task Force began by conducting surveys of professional standards, ethical rules, and civility guidelines from a wide range of jurisdictions.  Through this process the Task Force identified a broad consensus regarding the standards of civility expected before courts and tribunals.  Recognising the absence of any applicable framework in the context of international arbitration, the Task Force then began the process of memorialising these principles in the form of the Guidelines.

The Guidelines are not intended to be mandatory. However, parties may choose to incorporate the Guidelines in their arbitration agreements, or they may be adopted by arbitral institutions or tribunals, for example in procedural orders or terms of reference.

Overview and key takeaways

The Guidelines are divided into four sections:

• general guidelines for all participants in international arbitration;
• guidelines for party representatives;
• guidelines for arbitrators; and
• guidelines for other participants.

There are 16 principles in total, and each of the principles is accompanied by a substantive 'Explanation', which provides further context as to the principle's intended operation.

Part I sets out concepts such as requiring participants to international arbitrations to act with integrity, respect and civility; to respect all forms of diversity and cultural background; and to respect participants' rights to privacy and confidentiality.  Interestingly, this section also creates an obligation on participants to ensure that individuals under their supervision follow the standards of practice expressed in the Guidelines – thereby expanding the reach of the Guidelines.

In terms of the principles aimed directly at party representatives, the Guidelines provide e.g. for representatives to act cooperatively with one another; act with respect and courtesy; and not to knowingly engage in activities intended to obstruct, delay or disrupt the arbitration process.

The principles directed at arbitrators broadly require arbitrators to treat all participants courteously and in an impartial manner, including refraining from employing hostile, demeaning or humiliating terms in communication.  The Guidelines also impose an obligation on arbitrators to ensure that all participants conduct themselves in a courteous and respectful manner.

The last section of the Guidelines is directed at all other participants, with specific principles addressed to witnesses, tribunal secretaries, interpreters, court reporters, and personnel of the arbitral institute.  These principles broadly require such participants to act honestly; assist the tribunal; and to address all participants in a courteous and impartial manner.

Commentary

International arbitration, by its nature, brings together practitioners and participants from a range of different cultural and legal backgrounds.  The creation of a common framework for conduct during international arbitration is thus a welcome addition.

The Explanations to the various guiding principles reflect some of the difficulties inherent in trying to develop a common set of principles of civility for practitioners in international arbitration.  For example, with respect to the obligation that party representatives shall not act offensively or with disrespect towards other participants (Guideline II.B), the Explanation notes that what constitutes offensive or disrespectful behaviour may vary depending on the circumstances, or the cultural and/or religious backgrounds of participants.

The Explanations also demonstrate the balancing act that the Task Force had to engage in to, on one hand promote civility, but on the other hand not undermine representatives' ability to advocate for their clients.  This is evidenced in the Explanation to Guideline II.A, which states that the principle obliging party representatives to act cooperatively is not intended to undermine zealous advocacy.  Similarly, the Explanation to Guideline I.C, which requires all participants to ensure that arbitrations remain timely and cost effective, notes that such criteria are highly dependent on the particularly circumstances of a case, and that accordingly the fact that a party advocates for a longer or more costly process is not, in itself, inconsistent with the Guidelines.  Determining whether or not these Guidelines have been breached will therefore require a detailed balancing exercise, and will need to be assessed on a case-by-case basis.

The fact that such Guidelines have been promulgated is demonstrative of a clear sentiment within the arbitration community that participants in arbitration are required to hold themselves to a certain standard of conduct.  By setting this tone, the Guidelines may also contribute towards making international arbitration accessible to practitioners from more diverse backgrounds.  Ultimately, it will be for parties, arbitral institutions and tribunals to ensure the uptake of these Guidelines by incorporating them into their agreements or orders.  International arbitration participants should therefore take note, so as to further the important purpose of promoting a minimum standard of civility in international arbitration.

For more information please contact Christian Leathley, David Arias, or Alisha Mathew.