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Counsel Ethics In International Commercial Arbitration

[Editor’s Note: Tomas Vail is an arbitration specialist and founder of London-based Vail Dispute Resolution and Farshad Rahimi Dizgovin is a SJD candidate at the University of Michigan Law School. Any commentary or opinions do not reflect the opinions of Vail Dispute Resolution, University of Michigan Law School or Lexis- Nexis®, Mealey PublicationsTM. Copyright © 2023 Tomas Vail. Responses are welcome.]

Counsel behavior is becoming increasingly scrutinised in international arbitration. The need for regulation is particularly felt when it comes to witness preparation, document disclosure, and conflicts of interest issues, as various legal systems treat these matters very differently. As arbitral practices can develop from domestic litigation practice, we briefly discuss these issues with a focus on the UK and US legal systems.

Witness preparation

Witness preparation in the US is known to be extensively broad. A great degree of contact between lawyers and witnesses is permitted, which includes even witness coaching. In fact, counsel may consider themselves required to engage in coaching as the failure to zealously represent a client may constitute malpractice. There are nevertheless certain prohibitions, as counsel may not knowingly offer false evidence or assist a witness to testify falsely.

The UK allows for more limited work with witnesses. The fundamental rule is that the witness should provide their own honest and independent recollection of the events at issue. The case law distinguishes between three kinds of interactions with witnesses— interviewing, familiarisation, and coaching. While counsel can interview and familiarise witnesses, coaching is prohibited because it involves a detailed discussion of the specific facts for the witness to rehearse responses to potential questions.

At the international level, most soft law rules and guidelines permit ‘some contact’ between counsel and witnesses. For example, the IBA Rules on the Taking of Evidence in International Arbitration permits counsel to “interview…witnesses or potential witnesses and to discuss prospective testimony with them.”1

Similarly, the IBA Guidelines on Party Representation in International Arbitration (“the IBA Guidelines”) stresses that evidence should reflect the witness’s or the expert’s own account of the relevant facts, events or circumstances. But it allows counsel to “meet or interact with [witnesses] in order to discuss and prepare their prospective testimony.”2

Likewise, the LCIA Arbitration Rules authorize counsel “to interview any potential witness for the purpose of presenting his or her testimony.”3 Although these guidelines permit some degree of counsel-witness contact, the use of open-ended terms such as ‘interview’, ‘discuss’ and ‘prepare’ allow room for interpretation which might vary depending on the circumstances of each case.

Document disclosure

In the US, the scope of document disclosure is broad and includes ‘any non-privileged matter’ that is relevant to any party’s claim or defense. And counsel itself has an obligation to search for the relevant documents and certify that the search was reasonable. There are exceptions, as for example, attorney-client communications, including communications between a client and an in-house counsel, are generally privileged if, among other requirements, they were made for the purpose of securing legal advice. Privilege will not apply, for example, where documents are made for the purpose of committing a crime or tort.

The UK also recognises a broad concept of document disclosure. Parties must disclose ‘all relevant documents’, whether helpful or harmful to their case.

Moreover, parties are under a duty to make ‘reasonable research’ for the applicable documents. However, where legal advice and litigation privileges apply, communications between a lawyer and its client are protected, and also where in-house counsel is providing legal (and not business) advice. But privilege does not apply, for example, when communications are found to fall within the exception of fraud or inequity.4

Soft law rules and guidelines also permit some degree of document production in international arbitration. In general, the criteria of relevance and materiality, specificity, the existence of requested documents and the opposing party’s access to them will determine the scope of disclosure. But requests for document disclosure may be dismissed, including where there is a lackof sufficient relevance to the case, unreasonable burden, and legal impediment and privilege under the applicable legal or ethical rules determined by the tribunal.

As to counsel’s role in document disclosure, the IBA Guidelines encompass detailed provisions regarding information exchange and disclosure. They, for example, require counsel to explain to clients the consequences of failure to produce documents.5 The LCIA-Annex on General Guidelines for the Authorized Representatives of the Parties also prohibits counsel from knowingly concealing, or assisting in the concealment of, any document that is ordered to be produced.6 .

Conflicts of interest between counsel, arbitrators and experts

That arbitrators must remain independent and impartial is undisputed. As a corollary, arbitrators must disclose any circumstances that can undermine their independence and impartiality.

Experts may also be subject to conflicts of interest considerations in international arbitration.7

Most arbitration rules do not expressly address whether counsel should consider conflicts of interest when either selecting arbitrators/experts or dealing with a
potential challenge. The ICC and LCIA arbitration rules8 authorise the tribunal to remove counsel if circumstances so warrant. These rules, however, do not expressly set out if the counsel itself has an ethical or legal duty to consider its potential conflict with the arbitrator or expert at the time of appointment or subsequently withdraw when challenged. Nevertheless, soft law rules and guidelines provide some guidance.

For example, the IBA Guidelines permit a counsel’s ex parte communications with a prospective party-appointed arbitrator under certain circumstances, such as checking for conflicts of interest.9 The IBA Guidelines do not expressly employ the language of counsel’s ‘duty’ to consider a possible conflict. It instead says that but communications are not ‘improper’,10, which suggests that counsel has discretion. The IBA Guidelines on Conflicts of Interest in International Arbitration also recognise a potential conflict arising from the counsel-arbitrator relationship, but it imposes the disclosure duty on the appointing party rather than on counsel itself.11

Sanctions for counsel misconduct

Sanctions for counsel misconduct stemming from conflicts of interest situations resemble those governing challenge of arbitrators —counsel should withdraw or can be removed.12

For other types of counsel misconduct (e.g. when counsel knowingly makes false submissions of facts or engages in obstructive activities intended to jeopardise the finality of any award), LCIA Article 18.6 authorises the tribunal to impose sanctions which include ‘a written reprimand’, ‘a written caution as to future conduct in the arbitration’ and any other ‘necessary’ measure for conducing proceedings (which can include the removal of counsel).13 It may also enable tribunals to report misconduct to local professional authorities.14 Counsel’s conduct can further be considered in awarding costs.15

The IBA Guidelines16 contemplate similar sanctions as the LCIA Rules. But they also enable the tribunal to ‘draw adverse inferences in assessing the evidence or the legal arguments’, which seems to be unavailable under the LCIA as “drawing adverse inferences is not a sanction against the represented but a measure that affects the represented party”.17


Counsel ethics may have myriad aspects, and the areas concerning witness preparation, document production and conflicts of interest issues are of increasing importance. While there are differences among arbitration rules and guidelines in regulating counsel ethics in theseareas, significant developments have already occurred.


  1. The IBA Rules on the Taking of Evidence in International Arbitration 2020, Art. 4(3).
  2. The IBA Guidelines on Party Representation in International Arbitration 2013, Guideline 24.
  3. LCIA Arbitration Rules 2020, Art. 20(6).
  4. Richard Lewis, Stephanie Tsui et al., Privilege Claimed, Privilege Protected? English Court Orders Release of “Privileged” Documents Adopting “Fraud Exception”, Hogan Lovells (February 6, 2023), knowledgeservices/news/privilege-claimed-privilege-protected-english-court-orders-release-of-privileged-documents-adopting-fraud-exception.
  1. The IBA Guidelines on Party Representation in International Arbitration 2013, Guideline 14.
  2. The LCIA-Annex on General Guidelines for the Authorized Representatives of the Parties 2020, Para 5.
  3. See e.g., Article 4.1 of the Chartered Institute of Arbitrators Guidelines on Party-appointed and Tribunal-appointed Experts; and Rule 3 of the Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members.
  1. ICC Arbitration Rules 2021, Art. 17; LCIA Arbitration Rules 2020, Art. 18(4).
  2. The IBA Guidelines on Party Representation in International Arbitration 2013, Guideline 8(a).
  3. Ibid.
  4. The IBA Guidelines on Conflicts of Interest in International Arbitration 2014, Introduction and General Standard 7(b).
  5. See supra note 8; The IBA Guidelines on Party Representation in International Arbitration 2013, Guideline 5.
  6. Maxi Scherer, “Chapter 20: Authorized Representatives”, in Maxi Scherer, Lisa Richman et al. (eds), Arbitrating under the 2020 LCIA Rules: User’s Guide (Kluwer Law International 2021) at 369; Raid Abu-Manneh, The Conduct of the Parties in International Arbitration: The Current State of Play, International Bar Association (October 21, 2022),
  1. Ibid.
  2. LCIA Arbitration Rules 2020, Art. 28.
  3. The IBA Guidelines on Party Representation in International Arbitration 2013, Guideline 26.
  4. Scherer, supra note 12 at 370. n

Authors: Tomas Vail and Farshad Rahimi Dizgovin

Originally Published:

Publish Date: 24 April 2023