The New LCIA Arbitration Rules 2014 – Conduct of Legal Representatives

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

The London Court of International Arbitration (LCIA) has recently confirmed that the new LCIA Arbitration Rules have been formally adopted by the LCIA Court and will come into effect on 1 October 2014. The LCIA Arbitration Rules have not substantially changed since 1998 so the amendments are long overdue.

The new rules aim to ensure an effective, efficient and fair process and whilst there are many notable changes, the new Article 18 is by far the most significant development.

Article 18 deals with the conduct of the parties' legal representatives and introduces general guidelines by way of a separate annex which, according to the LCIA website, is intended to promote the good and equal conduct of the parties' legal representatives.

Whilst the annex to the LCIA Arbitration Rules is titled "General Guidelines for the Parties' Legal Representatives", Article 18.5 requires each party to confirm to the Arbitral Tribunal that its legal representative has agreed to comply with them.

The guidelines encourage the following:

• A legal representative should not engage in activities intended unfairly to obstruct the arbitration or to jeopardise the finality of any award (Paragraph 2)
• A legal representative should not knowingly make any false statement to the Arbitral Tribunal or the LCIA Court (Paragraph 3)
• A legal representative should not knowingly procure or assist in the preparation of or rely upon any false evidence (Paragraph 4 )
• A legal representative should not knowingly conceal or assist in the concealment of any document (or any part thereof) which is order to be produced by the Arbitral Tribunal (Paragraph 5)
• A legal representative should not deliberately initiate any unilateral contact relating to the arbitration or dispute with any member of the Arbitral Tribunal or the LCIA Court during the arbitration proceedings (paragraph 6)

The LCIA is the first international arbitration institution to award the Arbitral Tribunal powers to take action against inappropriate conduct by way of sanctions. Article 18.6 provides that should a complaint be received by one of the parties, or the Arbitral Tribunal upon its own initiative has a complaint, the Arbitral Tribunal may order any or all of the following sanctions:

(i) A written reprimand
(ii) A written caution as to future conduct in the arbitration
(iii) Other measures necessary to allow the Arbitral Tribunal to fulfil its general duties

The above sanctions may only be imposed once the Arbitral Tribunal has consulted the parties and granted the legal representatives a reasonable opportunity to answer the complaint.

It is clear that the "General Guidelines" in fact provide more than guidance.