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DIS 40 - Geneva | 27 May 2019
Legal Framework for Counsel's Conduct in
International Arbitration
Nino Sievi
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet
What's all the fuss about?
Survey of IBA Task Force on Counsel Conduct (2010):
87% of responding counsel admitted to being unsure about
which rules actually apply to counsels' conduct in an
international arbitration
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet
Potential Bases for Regulating Counsel's Conduct
 Criminal Law
 Bar Rules
 Arbitration Rules
 Soft Law
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet
Criminal Law
 Examples:
• Incitment to give false testimony
• Forgery of documents
• Fraud
 Scope of application?
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet
Bar Rules
 Germany: BRAO; BORA
 Switzerland: Federal Act on Free Movement of Lawyers;
Swiss Bar Rules on Professional Conduct
 England & Wales, Barristers: Bar Standards Board
Handbook
 CCBE, Council of Bars and Law Societies of Europe:
Code of Conduct for European Lawyers
 Article 4.1-4.4: Conduct Rules
 Article 4.5 declaring these rules applicable to arbitration
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet
Bar Rules
 Scope of application?
• Bar admission/registration
• EU Directive 77/249
 Special cases:
• dual/triple-qualified lawyers
• mixed legal teams
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet
Arbitration Rules
 LCIA, Article 18 & Annex I
 DIS, Article 27.1
 ICC, Article 22.1
 Swiss Rules, Article 15(7)
Tribunal's power to sanction counsel for misconduct?
Tribunal's power to deem evidence inadmissible, draw
negative inferences or strike out statements?
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet
Soft Law
 IBA Guidelines on Party Representation in International Arbitration
 SIARB Guidelines on Party-Representative Ethics
 UIA, Turin Principles of Professional Conduct for the Legal Profession
on the 21st Century
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet
Checklist
Rules for counsel's conduct may be found in:
 Criminal Law:
• counsel's home jurisdiction
• seat of the Arbitration
• place where hearings physically take place
• parties' domicile/seat
 Bar Rules:
• bar rules of counsel's place of admission
• foreign bar rules due to EU Directive 77/249
• CCBE in cross-border cases within Europe
 Arbitration Rules
 Soft Law
DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet10
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Legal Framework for Counsel's Conduct in International Arbitration

  • 1. DIS 40 - Geneva | 27 May 2019 Legal Framework for Counsel's Conduct in International Arbitration Nino Sievi
  • 2. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet What's all the fuss about? Survey of IBA Task Force on Counsel Conduct (2010): 87% of responding counsel admitted to being unsure about which rules actually apply to counsels' conduct in an international arbitration
  • 3. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet Potential Bases for Regulating Counsel's Conduct  Criminal Law  Bar Rules  Arbitration Rules  Soft Law
  • 4. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet Criminal Law  Examples: • Incitment to give false testimony • Forgery of documents • Fraud  Scope of application?
  • 5. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet Bar Rules  Germany: BRAO; BORA  Switzerland: Federal Act on Free Movement of Lawyers; Swiss Bar Rules on Professional Conduct  England & Wales, Barristers: Bar Standards Board Handbook  CCBE, Council of Bars and Law Societies of Europe: Code of Conduct for European Lawyers  Article 4.1-4.4: Conduct Rules  Article 4.5 declaring these rules applicable to arbitration
  • 6. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet Bar Rules  Scope of application? • Bar admission/registration • EU Directive 77/249  Special cases: • dual/triple-qualified lawyers • mixed legal teams
  • 7. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet Arbitration Rules  LCIA, Article 18 & Annex I  DIS, Article 27.1  ICC, Article 22.1  Swiss Rules, Article 15(7) Tribunal's power to sanction counsel for misconduct? Tribunal's power to deem evidence inadmissible, draw negative inferences or strike out statements?
  • 8. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet Soft Law  IBA Guidelines on Party Representation in International Arbitration  SIARB Guidelines on Party-Representative Ethics  UIA, Turin Principles of Professional Conduct for the Legal Profession on the 21st Century
  • 9. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet Checklist Rules for counsel's conduct may be found in:  Criminal Law: • counsel's home jurisdiction • seat of the Arbitration • place where hearings physically take place • parties' domicile/seat  Bar Rules: • bar rules of counsel's place of admission • foreign bar rules due to EU Directive 77/249 • CCBE in cross-border cases within Europe  Arbitration Rules  Soft Law
  • 10. DIS 40 - Geneva | 27 May 2019 CMS von Erlach Poncet10 CMS Legal Services EEIG (CMS EEIG) is a European Economic Interest Grouping that coordinates an organisation of independent law firms. CMS EEIG provides no client services. Such services are solely provided by CMS EEIG’s member firms in their respective jurisdictions. CMS EEIG and each of its member firms are separate and legally distinct entities, and no such entity has any authority to bind any other. CMS EEIG and each member firm are liable only for their own acts or omissions and not those of each other. The brand name “CMS” and the term “firm” are used to refer to some or all of the member firms or their offices. CMS locations: Aberdeen, Algiers, Amsterdam, Antwerp, Barcelona, Beijing, Belgrade, Berlin, Bogotá, Bratislava, Bristol, Brussels, Bucharest, Budapest, Casablanca, Cologne, Dubai, Duesseldorf, Edinburgh, Frankfurt, Funchal, Geneva, Glasgow, Hamburg, Istanbul, Kyiv, Leipzig, Lima, Lisbon, Ljubljana, London, Luanda, Luxembourg, Lyon, Madrid, Manchester, Mexico City, Milan, Monaco, Moscow, Munich, Muscat, Paris, Podgorica, Poznan, Prague, Reading, Riyadh, Rio de Janeiro, Rome, Santiago de Chile, Sarajevo, Seville, Shanghai, Sheffield, Singapore, Skopje, Sofia, Strasbourg, Stuttgart, Tirana, Utrecht, Vienna, Warsaw, Zagreb and Zurich. cms.law Your free online legal information service. A subscription service for legal articles on a variety of topics delivered by email. cms-lawnow.com Your expert legal publications online. In-depth international legal research and insights that can be personalised. eguides.cmslegal.com

Editor's Notes

  1. “a high degree of uncertainty among respondents regarding what rules govern party representation in international arbitration”
  2. Fraud: UK: Fraud Act 2006 (fraud by false representation; even a representation as to the law; failure to comply with disclosure duty); common law offence of conspiracy to defraud Switzerland: "Prozessbetrug" escroquerie au procès, StGB 146 (BGE 122 IV 197: misleading the court) Germany: StGB 263: a prohibition to mislead courts or arbitral tribunals to the detriment of (i.e. by committing fraud against) the other party Scope of application: Part of the criminal act happen or takes effect in jurisdiction. Even small connection can be enough (especially in England). Seat of counter-party in that jurisdiction, seat of arbitration or place of physical hearing could be sufficient. Not aware of specific case law on the scope of application. Penalty  prison
  3. Germany: No concrete rules on counsel's conduct in proceedings. BRAO 43a(3): duty to act reasonable (don't spread lies; don't insult opponent) Switzerland: Swiss Bar Rules considered to give substance to general duty of care in article 12 of Federal Act on Free Movement of Lawyers. Relevant rules on conduct: - disclosure of settlement offers - contacting witnesses (explicit reservation of special rules in arbitration proceedings, e.g. Article 25(2) Swiss Rules) Doctrine and case law on article 12: no duty to disclose disadvantageous facts, but no permission to lie. England: Duty to the court of highest priority Rule of Conduct No 3: 1 you must not knowingly or recklessly mislead or attempt to mislead the court; 2 you must not abuse your role as an advocate; . 3 you must take reasonable steps to avoid wasting the court’s time; 4 you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions; 5 you must ensure that your ability to act independently is not compromised Rule of Conduct No 4: Your duty to act in the best interests of each client is subject to your duty to the court But: duty to the court not equal to duty to the arbitrator? Definition of "court" very wide in Handbook: means any court or tribunal or any other person or body whether sitting in public or in private before whom a barrister appears or may appear as an advocate. In any case, duty to act with honesty and integrity (Core Duty No 3). Rule of Conduct No 9(1): you must not knowingly or recklessly mislead or attempt to mislead anyone; Rules of Conduct No 9(2)(c): you must not draft any statement of case, witness statement, affidavit or other document containing any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud; Rule of Conduct No 9(4): you must not rehearse, practise with or coach a witness in respect of their evidence. CCBE: "It is a binding text on all Member States: all lawyers who are members of the bars of these countries (whether their bars are full, associate or observer members of the CCBE) have to comply with the Code in their cross-border activities within the European Union, the European Economic Area and the Swiss Confederation as well as within associate and observer countries" Consequences of non-compliance: Disciplinary proceedings (fine, disbarment)
  4. Scope of application depends on the specific bar rules: - usually tied to the registration as a lawyer: e.g. unregistered barrister only subject to very few conduct rules (e.g. not witness rehearsing) - also apply in arbitration proceedings - scope usually not restricted to legal services within that jurisdiction - some bar rules even declare foreign rules applicable if legal services are rendered in that jurisdiction (e.g. Barristers) EU Directive: Concerns "the activities of lawyers pursued by way of provision of services" in another Member State. "A lawyer pursuing these activities shall observe the rules of professional conduct of the host Member State" For Switzerland cf. Article 25 of Federal Act on Free Movement of Lawyers. Dual qualified lawyer: Bound by all bar rules (depending on level of admission, cf. barrister); must follow the stricter one. What do you do if there is a conflict? Mixed legal teams: Every individual member of the team is bound by his/her bar rules. Either comply with the strictest of those rules or change the composition of the team. Option of leaving certain tasks to a particular member of the team (e.g. rehearsing with witness by non-barrister) seems border-line.
  5. LCIA: Annex lists basis rules contained in most bar rules. Special rule re document production: A legal representative should not knowingly conceal or assist in the concealment of any document (or any part thereof) which is ordered to be produced by the Arbitral Tribunal. And: Prohibition to engage in activities intended to unfairly obstruct the arbitration. DIS: Drafted 4 years after LCIA, but decided not to include specific conduct rules. Article 27.1: The arbitral tribunal and the parties shall conduct the proceedings in a time- and cost-efficient manner, taking into account the complexity and economic importance of the dispute. ICC Similar to DIS. Swiss Rules: Article 15(7): All participants in the arbitral proceedings shall act in good faith, and make every effort to contribute to the efficient conduct of the proceedings and to avoid unnecessary costs and delays Power to sanction: Issue of finding basis for this power. LCIA 18.6: If such violation is found by the Arbitral Tribunal, the Arbitral Tribunal may order any or all of the following sanctions against the legal representative: (i) a written reprimand; (ii) a written caution as to future conduct in the arbitration; and (iii) any other measure necessary to fulfil within the arbitration the general duties required of the Arbitral Tribunal under Articles 14.4(i) and (ii). Point (iii) includes in severe case excluding legal representatives from the arbitration or reporting misconduct to local professional authorities. Broad discretion in allocation of costs. E.g. DIS Rules Article 33.3: The arbitral tribunal shall make decisions concerning the costs of the arbitration in its discretion. In so doing, it shall take into account all circumstances that it considers to be relevant. Such circumstances may include the outcome of the arbitration and the extent to which the parties have conducted the arbitration efficiently. Power to deem inadmissible or strike out: Broad discretion of tribunal re procedure, but issue with right to be heard.
  6. Guidelines only applicable to the extent parties agree to their application or arbitral tribunals take decision to that effect. Tribunal's to a wide extent free to determine the applicable rules to proceedings. At least in Switzerland rather limited success. ASA advised parties to explicitly exclude IBA Guidelines to ensure that arbitrators could not apply them sua sponte.