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In this multipart article, the author examines the phenomenon of correct behaviour in arbitration and "guerrilla tactics," and suggests possible solutions to the problems that the phenomenon produces. The author finds that the contractual nature of the arbitration agreement and the set of derived contracts allow the identification of contractual obligations for the participants, which impose obligations of conduct (and even duties for third parties) that are complemented or integrated, in the absence of express normative solutions, with the lex proceduralia that emerges from softlaw instruments. The author adds that this is supported by the regulations of each country and even supported by international conventions, which recognize the procedural effectiveness of the arbitration agreement.
In this multipart article, the author examines the phenomenon of correct behaviour in arbitration and "guerrilla tactics," and suggests possible solutions to the problems that the phenomenon produces. The author finds that the contractual nature of the arbitration agreement and the set of derived contracts allow the identification of contractual obligations for the participants, which impose obligations of conduct (and even duties for third parties) that are complemented or integrated, in the absence of express normative solutions, with the lex proceduralia that emerges from softlaw instruments. The author adds that this is supported by the regulations of each country and even supported by international conventions, which recognize the procedural effectiveness of the arbitration agreement.
Arbitration, like the judicial process, is essentially a mechanism of adjudication. One of the differences between them is that the former method of dispute resolution is based on a principle of self-composition -the arbitration agreement.
That is, the parties agree to resolve the dispute through an adjudication mechanism, which is characterized by the possibility of choosing the persons-and/or the methods for the selection of the persons-who will judge their claims and/or defenses, in addition to the rules that will regulate the procedure and those that will be applicable to the merits, computing a series of advantages, as a dispute resolution mechanism.3
Choice commonly involves the selection of the arbitration rules of an arbitral institution,4 authorized to administer or manage the arbitration, with different levels of participation, depending on both the seat of arbitration and the rules of the chosen institution.
Arbitrators exercise a private jurisdictional function;5 in other words, arbitration is a private process.6
In fact, Eduardo Couture defines arbitration as a process that, by operation of law or by agreement of the parties, is not settled before the organs of the jurisdiction of the State but before arbitrators."
Thus, arbitration being a private process, it can be said, following Adolfo Alvarado Velloso, that the arbitration process is a method of dialectical and peaceful debate between two people on a footing of perfect equality before a third party who holds the character of authority;8 a third party who is also impartial and independent (terzieta),9 and who will decide with a definitive vocation to which party the reason corresponds.
In the arbitration process, this decision is called an "award."10
The award resolves a dispute between two parties as a result of a process that allows each of them to be heard, to present their factual arguments, their evidence, their legal positions, and to exercise their defenses."
In this confrontation between divided parties, it is the force of reason and not the reason of force that determines the winner. And to determine who is right, it creates the debate and the possibility for each party to present its case.12
Thus, the procedural rules, which in arbitration are highly flexible, allow the series of acts, ranging from initiation to decision, to form the structure of a process so as to satisfy the universal requirement of due process.13
However, these rules must not only refer to the organization of the procedure but also to the ethical substance of the conduct or behaviour that the participants must observe during said procedural transit, since the subjects themselves can frustrate the effectiveness and the result of the procedure, that is, that the solution is reached or, in other words, that the purpose of the method is destroyed.
The identification of the rules on the behaviour of the participants generates problems and difficulties,14 such as, for example, the difficulty in determining which rules to apply to the conduct of the parties or their representatives (e.g., the heterogeneity of possible rules applicable to different actors and from different cultures), as well as the difficulties inherent to the vagueness and ambiguity of the terms used to qualify a procedural conduct as correct, or appropriate in a context of struggle or confrontation (e.g., good faith, loyalty, probity, etc.), or the diverse nature of the types of rules applicable to a conduct (e.g., disciplinary, criminal, civil, arbitral).
There is no doubt that an ideal of behaviour in the arbitration process must exist, which will depend on the person who is acting; independence, impartiality, diligence, loyalty, and science are expected from arbitrators; from lawyers and their representatives' loyalty, probity, good faith, collaboration; from experts, objectivity, good faith, collaboration; from other third parties, respect for the function and the purpose of the arbitration process.
Questionable conduct that may contradict these ideals of behaviour is not uncommon,15 with the parties and/or their representatives being the first to be accused of engaging in misconduct, although misconduct often involve also arbitrators, arbitral institutions, experts, and other third parties16 (the media).1-
It has been said that the causes or triggers of the problem of the "guerrilla tactics" are sociological and economic factors, such as the growth, globalization,18 and expansion of arbitrations-reflected in an increase in lawyers, arbitrators, and arbitral institutions20-and the resulting clash of cultures.21
Other relevant factors regarding the causes of the "guerrilla tactics" are the expansion of the object, scope, and sophistication of arbitration, which means that it is increasingly used, both in commercial or investment disputes or in conflicts between states, as well as in modest commercial disputes, civil disputes, mass arbitration, and consumer arbitration.
This article highlights a few problems involved in the complexity of a topic in permanent development, some of its manifestations, and the lines that could guide us toward possible solutions.
Specifically, this article focuses on questions such as: What conduct should we expect from the protagonists of the arbitration? And who is called upon to verify compliance or potential consequences in the event of noncompliance?
The central line guiding these ideas is based on insisting on the contractual nature of the arbitration agreement," which is a truism, but which, for the purposes of this article, is a starting point for modeling possible solutions that the problems of inappropriate behaviour generate in a private process.
Therefore, this article considers that it is essential to take into account the contractual relationships present in arbitration, the obligations they generate, and the standards of compliance with them, which, being in tune with the purpose and functionality of arbitration, can serve to find solutions from the autonomy of parties and the arbitration regulation itself.
From Incorrect Behaviour to Guerrilla Tactics
The deviation of conduct in the field of judicial proceedings is called in different ways; for example, misconduct, recklessness, malice, impropriety, lack of procedural good faith, procedural disloyalty, lack of probity, abuse of process or abuse in the process, procedural fraud, etc.23
From a philological perspective, "guerrilla tactics" is the expression used to connote the same phenomenon of procedural impropriety or incorrect, illicit, or deviant conduct, in arbitration.24
"Guerrilla" is the term given to the incursion or group that participates in an armed conflict, regardless of the express or implicit rules that govern war as a mechanism for "resolving" conflicts.25
In the context of arbitration, guerrilla tactics are conducts that are contrary to good faith, such as the unlawful exercise of a right, fraudulent actions, or actions contrary to loyalty and probity that must prevail in any arbitration debate.26 In short, any conduct manifested before, during, and even after the issuance of the award that inappropriately obstructs or frustrates the development and the result of the arbitration process, which is to resolve the conflict in a fair and effective manner.27
Some authors define guerrilla tactics as abroad set of unconventional and protean procedural means that affect arbitration, either through manipulation or obstruction to gain time and even to paralyze the arbitral proceedings.28
Others understand them as voluntary ethical abuses that have the purpose of delaying or sabotaging an arbitration procedure to take an unfair advantage.29
They are also understood as the use and abuse of the rules applicable to the arbitral procedure or the related procedural rules in order to frustrate the procedure, causing it to be abandoned or paralyzed, or even preventing one of the parties from presenting its case.30
The advantage of the name or nomen "guerrilla tactic" is its all-encompassing feature of possible conducts that may unduly or illicitly affect an arbitration procedure and its outcome.
However, this advantage is also a disadvantage, because of the vagueness and ambiguity implied. The range of behaviours that encompasses its possible meaning spans from the most reprehensible conducts to those that can be considered "justified."
Perhaps the intention of the linguistic use is to inhibit these behaviours with the stigmatizing use of the expression "guerrilla tactics."
Scholars have identified some behaviours that they classify as guerrilla tactics,31 including bribery, intimidation and harassment,32 unauthorized recordings and other forms of surveillance, delaying tactics,33 reckless or frivolous challenges, violence, threats, criminal prosecutions34 or threats of criminal prosecution unlawfully obtained evidence,35 concealment or destruction of evidence, parallel processes,36 procedural abuses,37 fraud,38 claims for liability (civil, criminal, etc.) for retaliation, among others.
It is therefore a diverse universe of inappropriate conducts, which are not clearly defined in legislative texts or general regulations, nor in mandatory international codes of conduct, which to date do not exist, coupled with the fact that many arbitrations, at least commercial arbitrations,39 do not have the possibility of easily knowing the cases where this type of situation arises.40
In arbitration proceedings, the difficulties referred to have an incentive offered by a specific difference. And, as mentioned, the source of arbitration is the agreement of the parties, that is, a binding contract.
Therewith, the arbitration agreement, as a binding contract, gives rise to a series of derivative or ancillary relationships,41 which has been called "knot of contract,1' and which are important to understand the set of relationships.
Arbitration, Knot of Contracts, and Guerrilla Tactics
It is commonplace when talking about arbitration to mention that the arbitration agreement is its cornerstone and the entire arbitration structure is built on its basis.42
This could not be truer.
The arbitration agreement, as a contract with its own effects and conceptual and functional independence, can also be described as a preparatory contract, the source of a series of derivative43 and indivisible44 relationships defining the future of the interactions that take place throughout the arbitration process.45
In the case of institutional arbitration, an arbitration collaboration contract46 concluded between the institution and the arbitrators arises.
The arbitral institution is obliged to the arbitrators to comply with certain services, related to assistance to the arbitral tribunal, administration of the proceedings, payment of fees, and others, while the arbitrators are obliged to comply with the arbitral performance (managing the arbitration, deciding, complying with the applicable procedural rules, complying with the obligations of conduct, etc.).
At the same time, the so-called arbitrator's contract arises,47 concluded between the arbitrator (or arbitrators) and each of the parties,48 whose main services, in the absence of an arbitral institution, will imply for the former the provision of the arbitral service, with the characteristic of the jurisdictional service (e.g., disclosure, impartiality, independence, neutrality, efficiency, availability, celerity, loyalty, etc.) and for the parties, the payment of arbitrators' fees.49
In the case of both institutional and ad hoc arbitrations, obligations of conduct arise for both the arbitrators and the parties, sometimes expressly incorporated from the rules applicable to the procedure and by the incorporation by reference to the procedure of rules and other arbitral rules.
Likewise, we find the arbitration administration contract,50 entered into between the parties and the arbitral institutionnaturally, if it is an institutional arbitration-where the latter provides an arbitration administration service in exchange for a consideration that the parties are obliged to pay.
In addition, there are legal relationships within the arbitral procedure with subjects such as witnesses or experts, or secretaries to the arbitral tribunal, and, in addition, non-contractual legal relationships with third parties completely unrelated to the arbitration, imposed by the applicable rules or laws.
It is in this constellation of interactions that the so-called guerrilla tactics are manifested, as behaviours deviated from the role that each subject is ideally called upon to fulfill within the procedure and the principles that are imposed on their actions, with the purpose of achieving by means outside the arbitration procedure some results oilier than the fair and effective resolution of the conflict.
The legal relationships or situations that arise as a result of the arbitration agreement and the knot of contracts are characterized and have in common the contractual gene, that is, they are born by the agreement of the parties, which is in itself a factor of cohesion in terms of their reading or interpretation and in terms of their function; and this is an indicator that guides the issue of the conduct of the procedural actors in arbitration, because unlike the rules on procedural conduct in judicial proceedings, which are not born from agreements, arbitration is governed by the parties' autonomy.
As the source of arbitration is of a contractual nature, principles such as the intangibility or binding force of the contract, as well as standards of conduct (e.g., good father of a family or reasonable person and the principle of objective good faith), serve as the basis or foundation of the ideal of conduct that the protagonists of the arbitration must observe.51
The complex normative heterogeneity and polyhedral reality of the phenomenon of the adequacy of the behaviours of the subjects participating in the arbitration should be based on a principle or rule applicable to all its actors: however, we insist, there is no homogeneous solution.
Now, there is a possible methodological basis that can be used to define what should be considered appropriate or not, which consists of starting from the perspective of the operation of arbitration, from the contractual obligations derived from the arbitration agreement and the knot of contracts, in terms of the parties, the arbitral tribunal and the arbitral institution; and the opposability of these relationships and the duty to respect them, as legal situations, with respect to third parties participating in arbitration.52
The Arbitration Agreement (And the Knot of Contracts) as a Relevant Factor in Determining the Correct Conduct in the Arbitration Procedure
If we consider that arbitration is an adversarial or adjudicatory mechanism, it must be understood that it is an (intellectual) struggle regulated by law, an organized substitute for illegitimate self-defense, which excludes the intervention of judicial bodies in the declaration of law53 (jurisdictio), because the parties have decided to do so and find support in the laws of the State.
The structure of this method of dispute resolution does not give reason to any of the parties in advance and requires the activity and self-responsibility of each one to achieve victory (or to lose as little as possible).
This is part of the right to present a defense, the right to raise or present one's case, the right to present evidence, or the right to due process that each party in the arbitration process has.54
However, not all conduct in the context of an arbitration process is a "lawful" or "correct" action, since it can deviate from (the purpose of the mechanism and the ethics of the debate, to become a legally reprehensible conduct or guerrilla tactic.
Sometimes, the action will be so obviously deviant, abusive, or illegal that it will be relatively easy to classify it as a guerrilla tactic or misconduct.
But other times, as mentioned, the line that separates the licit from the illicit is not so clear.55
When it comes to broad rights or powers in a context of procedural confrontation, trying to draw boundaries without a frame of reference that defines the illegality of the conduct may imply the risk of affecting rights.56
The truth is that the right to defense, in the arbitration context, has limits, generically established by the purpose of the dispute resolution mechanism (the fair and effective resolution of a dispute through arbitrators), specifically by the characteristics of arbitration and the obligations imposed by the arbitration agreement, as well as the knot of contracts arising from it.57
We have already said that, as a rule, there is no lypilication or uniform description of possible deviant conduct and the principles or rules on the matter remain vague and ambiguous,58 both in terms of their content and scope, as well as in terms of their binding nature, constituting, as part of the doctrine points out, a "no man's land"59 (for example, the existence of a plurality of potentially applicable rules60 or the absence of uniform professional rules of conduct that can be imposed).61
Strictly speaking, the apparent solution lies in determining what is lawful and what is illegal, a solution that must be based on an agreement on what is meant by "unlawfulness of conduct" in arbitration.
It would seem that illegality is presented in layers, taking into account that the same act can offend several criteria of lawfulness (e.g., both material (criminal, civil, disciplinary, arbitral) and territorial, and even related to personal statutes),62 which results from a tremendous contingency.
The problem is difficult to solve, since it is not easy to regulate in a uniform and general way, applicable to all systems and States, the criteria of lawfulness or correctness, to be applied to a multifaceted and complex phenomenon.
From the perspective of arbitration, it can be possible to regulate or at least to agree on criteria of correctness, which may be compatible and even have an influence on other municipal criteria of illegality.
So there is a light or guide that can illuminate the way to possible solutions, and that is to look at the issue from the perspective of the obligations derived from the arbitration agreement, the knot of contracts, the relationships and legal situations that arise from these, as relationships/situations of private and contractual origin recognized by the legal systems, as norms or standards of behaviour within a specific dispute resolution system.
In fact, such a perspective finds a legal basis in the respect and application of international conventions that regulate arbitration, such as the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) or the 1975 Inter-American Convention on International Commercial Arbitration (Panama Convention),63 which not only recognize the effects of the arbitral award, but also recognize the effects of the arbitration agreement.
Specifically, it would mean a possible solution to possible contradictions that may arise between the set of possibly applicable rules, with a view to the conventional solution, that is, the obligation of the State to give validity to the agreement through the recognition of the obligations that are deduced from it and from the set of related contracts.
The Conduct of the Party Representatives
The parties have the right to choose the person who will represent them in an arbitration process.
In fact, arbitration is conceived as a process tailored to the needs of the parties, so it is consistent with the objective to allow them to freely choose the persons who will represent or assist them in the process.
Although uncommon-especially in international arbitrations-it is possible that, according to the applicable rules, it is necessary for the representatives to have a professional qualification (lawyers or professionals in the defense of the rights of others).65
It also happens-and it is common to find it in instruments applicable to international arbitration66-that a professional qualification of the kind is not necessary,67 which happens on other occasions due to the interpretation of arbitration rules and principles, which allow the same conclusion to be reached.68
The possibility of choosing lawyers or representatives is a matter that relates to the right of the parties to be represented by persons they trust.69
Now, this right-freedom finds limits, again, in the purpose of the arbitration agreement and the resolution mechanism chosen, which is to resolve the conflict fairly and effectively.
In fact, it has been considered that the appointment of representatives or assistants should not be interpreted as a "right" to hinder the development of the arbitration, for example, by appointing representatives or lawyers who are too busy or who realistically cannot attend the arbitration process,70 or generate a supervening conflict of interests with other subjects of the arbitration, especially with respect to the arbitral tribunal,"1 or that presenting themselves as attorneys of a party, upon seeing that the procedural result is not favourable, they indicate that they do not have sufficient authorization to exercise powers of representation, challenging the proceedings.72
The lawyer as a civil hero,73 whose historical commitment to the defense of peace, justice, truth, fundamental rights, or the interests of his client, can deviate in his purpose.
And this deviation can directly affect the fairness and effectiveness of the arbitration, either with a manifestly obstructionist attitude, or manifestly unfounded allegations, disrespect for the arbitral tribunal, the arbitral institution, the parties, and other participants in the arbitral process, seeking to generate conflicts of interest with members of the arbitral tribunal to excite a challenge or disqualification of the arbitrators, conflicts of interest relating to the financing of arbitration, processes that torpedo the arbitral procedure, (threats of) unfounded criminal proceedings against arbitrators, etc.
In this regard, Blackaby et al. have pointed out that there are problems in determining the rules applicable to the conduct of lawyers, especially in the field of international arbitration, where a set of legal systems can be applicable and often conflict.74
For example, the legal system of the place where the lawyer is qualified or practises-which may even become complicated when the lawyer is authorised to practise in several jurisdictions other than that of the place of arbitration-versus the rules of arbitral procedure,75 or those of the place of arbitration or the place of hearings, where it is even possible to consider applying rules that are generally considered mandatory for judicial proceedings (provided for in the Codes of Civil Procedures),76 etc.
Although lawyers generally have codes of conduct or ethics in the respective State that enables them to practice their profession,77 there are situations of doubts about the scope of their application to arbitration78 (or to non-lawyer representatives), where a plurality of cultures and legal systems meet, a situation that seems to be further complicated by the absence of mandatory codes of conduct.79
As pointed out above, apart from these possible controversies, it is necessary to start from a base-source of the obligations applicable to the parties, lawyers, or their representatives,80 and we can say that this is found in the obligation of contractual performance derived from the arbitration agreement; namely, the principle of intangibility of the contract (or binding force of the contract) the behaviour of a good father of a family (or reasonable person) and the principle of loyalty or contractual good faith.
The solution is relatively simple in the case of arbitration laws or rules that include their own rules governing the conduct of representatives in arbitration.
Thus, some regulations establish that the lawyers or representatives of the party assume, with the acceptance of the representation, the rules of the game of arbitration, including the obligations of conduct,81 while other sources refer to the respective codes of conduct for the subjects who will participate in the arbitration to obtain their acceptance, as is the case of the Code of Conduct and Best Practices of the Barcelona Arbitration Tribunal (TAB) for the Parties Involved in the Arbitration Process.82
Some other arbitral institutions have their own codes of conduct or ethics, which are an integral part of their regulations, as is the case of the Rules of the Arbitration Center of the Lima Chamber of Commerce (2017),83 the Arbitration Rules of the Business Center for Conciliation and Arbitration CEDCA (2020), which expressly incorporates as part of its regulations84 the Code of Ethics issued by said arbitral institution,85 or the Regulations of the Commercial Mediation and Arbitration Center (CEMARC) of the Argentine Chamber of Commerce and Services (2017), also expressly incorporates as part of its regulations,86 the Code of Ethics for Mediation and Arbitration of CEMARC,87 or the Arbitration Rules of the London Court of International Arbitration (LCIA) (2020), which incorporates as part of its rules an annex relating to the General Guidelines for Representatives of the Parties.88
Other arbitral institutions such as the ICC in its Notes to Parties and Arbitral Tribunals on the Conduct of Arbitration in Accordance with the ICC Arbitration Rules (2021) invite arbitrators and parties to adopt or be guided by the IBA Guidelines on Representation of Parties in International Arbitration (2013).89
When it is not easy to determine the relevant standards of conduct, it is useful to turn to softlaw instruments that describe best practices and ideals of behaviours.
Thus, the Code of Best Practices in Arbitration of the Spanish Arbitration Club90 (2019), one of the most complete instruments that includes the best practices and standards of conduct in arbitration,91 is aimed not only at arbitral institutions (such as its 2005 version) but also at other participants in the arbitration process, such as arbitrators, lawyers, experts, and financiers.92
As softlaw rules, they are not binding, unless they are incorporated by agreement of the parties, in the arbitration agreement or during the proceedings.
They set out a number of imperatives that are considered to be in addition to the relevant rules applicable to lawyers, such as the general principles that should govern the conduct of lawyers in arbitration, the obligations that arise in the context of the appointment of lawyers (especially with a view to avoiding conflicts of interest generated by delaying or obstruction), the prohibition of communication with arbitrators, the duty of truthfulness, the duty of reasonableness of legal grounds, the veracity of evidence, as well as duties related to the production of documents, duties related to witness and expert evidence (such as the possibility of participating in the preparation of statements and reports), and duties related to confidentiality.
Another instrument is the Guidelines on Standards of Practice in International Arbitration (2021) issued by the International Council for Commercial Arbitration (ICCA), with the aim of providing guiding principles of civility in international arbitration.
This instrument is not intended to replace the peremptory rules that are applicable, nor is it intended to be an autonomous source of sanctions when there are no other reasons to consider possible consequences. Furthermore, it is not intended to discourage the fair and vigorous defense of the parties by their representatives.
The guidelines are quite comprehensive,93 as they regulate not only hypotheses concerning the conduct of party· representatives94 but also the conduct of arbitrators and other participants.95
ICCA guidelines, while not binding per se, may be incorporated into arbitration agreements, or may be incorporated by arbitral institutions or arbitral tribunals into their procedural orders or terms of reference, where applicable.
In an area more focused on representatives in arbitration, we can also mention the IBA Guidelines on Party Representation in International Arbitration (2013),96 as a set of conventionally applicable principles that aim to avoid (or reduce) possible problematic situations related to conflicts regarding the existence of mandatory applicable laws, the conflict between them or problems of legal analysis of private international law between national or local rules of professional ethics.
As we can see, when it is possible to incorporate regulations from softlaw into an arbitral proceeding or when the rules themselves or other instruments are applicable to the procedure regulating the situations related to the conduct of the representatives in the arbitration, the problems tend to be reduced; when the situation is not regulated by convention, the opposite occurs.
In any case, common and accepted practices, which have been collected, for example, in softlaw instruments, could be understood as criteria, in principle non-binding, that can be incorporated into the arbitral proceeding, precisely as legal criteria, directly binding or subsidiarily, of contractual compliance whose function Is to ensure that arbitration fulfills its function and purpose of resolving the dispute in a fair and efficient manner.
* · ·
Editor's note: This article will conclude in the next issue of Dispute Resolution Journal.
2 See Adolfo Alvarado Velloso, Sistema procesal. Garantía de la libertad, I, Santa Fe, Rubinzal-Culzoni, 2009, p. 496.
3 See Roque J. Caivano, Arbitrage, 2d ed., Ad-Hoc, Buenos Aires, 2008, pp. 33,34. See also Augusto M. Morello, Lectura procesal de temas sustan-ciales, Platense, La Plata, 2000, p. 242.
4 This is established in Article 2, (d) and (e) of the Model Law of the United Nations Commission on International Trade Law (UNCITRAL) on International Commercial Arbitration dated 21 June 1985. In the same vein, see, for example, the provisions of Article 7 of the International Commercial Arbitration Law of Argentina (2008), Article 1417 of the Mexican Commercial Code (2011). See Instituto Mexicano de Arbitraje, Legislacion Mexicana de Arbitraje Comercial Comentada, Pornia, Mexico, 2015, p. 27; or Section 2 of the Singapore Arbitration Act (2001).
5 As Alvarado Velloso, supra note 2, p. 497, points out, arbitration always involves a process developed and resolved by private individuals. In the same vein, Thomas Clay opines that the arbitrator concentrates even more on the contractual and jurisdictional components of the institution in which he performs his function, because the abstract dimension of arbitration is concretized in the person of the arbitrator, who is a judge appointed by contract. See Thomas Clay, El arbitro, Trans. C. Caceres, Universidad Javeriana-Ibanez, Bogota, 2012, p. 20.
6 With the adoption of the United Nations Commission on International Commercial Arbitration Model Law on 21 June 1985, one of its purposes was to achieve uniformity in arbitral procedural law and in the practice of international commercial arbitration (see Explanatory Note by the UNCITRAL Secretariat on the UNCITRAL Model Law on International Commercial Arbitration, no. 1). In fact, by means of resolution No. 40/72 of 11 December 1985, the General Assembly of the United Nations recommended "that all States give due consideration to the Model Law on International Commercial Arbitration, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice."
7 See Eduardo Couture, Vocabulario juridico, Depalnia, Buenos Aires, 1997, P. 359.
8 See Alvarado Velloso, supra note 2, p. 66. It should be noted that the expression "authority" is especially sensitive in Mexico, since one of the reasons for excluding the challenge ability of decisions through amparo is that the arbitrator is not considered an "authority." See Francisco Gonzalez de Cossio, Arbitraje, 5th ed., Porrua, Mexico, 2018, pp. 958,959. Naturally, the expression used in the main text has a connotation of "activity" that may be imposed on others in a mandator}' manner and not in the technical sense used in the Mexican system. On the notion of authority in the amparo in Mexico, see Emilio Nicolas Ortiz Bahena, Los principios generales que rigen el juicio de amparo, 2d ed., Porrua, Mexico, 2023, p. 21. Likewise, Raul Chavez Castillo, Nuevo juicio de amparo, 22th ed., Porrua, Mexico, 2024, p. 1.
9 See Claudio Consolo, Spiegazioni di diritto processuale civile. Profili generali, 2d ed., II, Giappichelli, Turin, 2012, p. 237.
10 As Eduardo Zuleta, El concepto de laudo, Universidad del Rosario, Bogota 2012, p. xi, points out, the word award is a signifier to which it is not possible to assign a univocal meaning, however, one of its most relevant meanings is to denote the phenomenon of the pronouncement of a decision or ruling with a final and binding character, by means of which the dispute submitted to arbitration is resolved.
11 See Dominique Vidal, Droit franc,ais de l'arbitrage interne et international, Gualino, Paris, 2012, p. 21.
12 See Ah'arado Velloso, supra note 2, pp. 307,496,497.
13 On the discussion of the source of due process in arbitration, see Clay, supra note 5, p. 49,
14 For a comparative analysis of the treatment of ethical standards applicable in some Latin American countries, see Maria Ines Corra, Santiago Lucas Pena & Maria Lourdes Garay, Ethical Rules and Standards in International Arbitration Across Latin America, Latin Lawyer, January 2023.
15 See Emmanuel Gaillard, Abuse of Process in International Arbitration, ICSI1) Review, 2017, p. 1.
16 See Catherine A. Rogers, Ethics in International Arbitration, Oxford University Press, New York, 2014, passim.
17 According to Richard M. Mosk. Attorney Ethics in International Arbitration, Publicist (Berkeley Journal of International Law), Vol. 5,2010, p. 32: "Arbitrators, arbitral institutions, parties and counsel vie for vast sums of money. Whenever money is at stake, there is potential for misbehavior__"
18 See Clay, supra note 5, p. 18.
19 See Corra et al., supra note 14.
20 See Jalal El Ahdab & Daniel Manguy, Droit de l'arbitrage, Theorie et practice, LexisNexis, Paris, 2022, p. 113.
21 Some authors point to the contamination of arbitration with U.S. practices (Americanization of arbitration). See Clay, supra note 5, p. 18.
22 Clay, supra note 5, p. 20.
23 See Eduardo Couture, Fundamentos de Derecho Procesal Civil, 3d ed., Depalma, Buenos Aires, 1977, p. 190; Ricardo Reimundin, El problema de la buena fe en el proceso civil, in Revista de estudios procesales, Argentina, 1979, p. 26; Adolfo Alvarado Velloso, Introducción al Estudio del Derecho Procesal, Santa Fe, Rubinzal-Culzoni, I, 2008, p. 262; Osvaldo Alfredo Gozaíni, Temeridad y malicia en el proceso, Rubinzal-Culzoni, Buenos Aires, 2002, p. 38; Joan Picó i Junoy, El principio de la buena fe procesal, Bosch, Barcelona, 2003, p. 51; Jorge I. González Carvajal, La conducta procesal de las partes, Bosch, Barcelona, 2021, p. 44, n.15.
24 See Carlos Alvarado Moreno & Teresa Roldán, Guerrilla tactics: Perspectiva de abogados de parte, árbitros, instituciones y la judicatura, in Revista Jurídica del Centro de Arbitraje de México, No. 1, August 2023, p. 131.
25 According to the Diccionario de la Lengua Española de la Real Academia Española, guerrilla of the diminutive of guerra means: "1. Escaramuza (refriega de poco importancia). 2. F. Partida de tropa ligera, que hace las descubiertas y rompe las primeras escaramuzas. 3. F. Partida de paisanos, por lo común no muy numerosa, que al mando de un jefe particular y con poco o ninguna dependencia de los del Ejercito, acosa y molesta al enemigo.........." In French, the Dictionnaire Larousse defines guérilla: "1. Forme de guerre caractérisée par des actions de harcèlement, d'embuscades ou de coups de main. 2. Groupe de soldats armés légèrement et chargés de harceler l'ennemi. 3. Combat mené par des groupes clandestins et caractérisé par des actions ponctuelles en vue de déstabiliser un régimen.........." In Italian, guerriglia is defined by the Dizionario Treccani: guerrìglia s. f. [dallo spagn. guerrilla (dim. di guerra "guerra"), che indicava però un reparto di truppe leggere o una banda di irregolari incaricati di esplorare i movimenti del nemico, o di attaccarlo con azioni di sorpresa e di disturbo].-Particolare tattica di guerra, condotta, con specifica conoscenza delle condizioni ambientali, da parte di formazioni di limitata entità, per lo più irregolari, contro le truppe regolari dello stesso stato o di uno stato estero, allo scopo di abbattere il regime costituito o protestare contro di esso, o anche di liberare il paese dallo straniero che lo occupa; si sviluppa con imboscate, attentati, sabotaggi, attacchi di sorpresa e conseguenti brevi scontri, generalmente effettuati in zone montane, boscose o impervie, che sono particolarmente favorevoli allo spostamento rapido di piccole formazioni...."
26 On the linguistic perplexities surrounding the phenomenon of the procedural conduct of the parties, see González Carvajal supra note 23, p. 253.
27 See Francisco González de Cossío, El arbitraje ante el litigio sucio, in Revista de Investigaciones Jurídicas, no. 46, ELD, Mexico, 2007, p. 327.
28 See El Ahdab & Manguy, supra note 20, p. 523.
29 See Rogers, supra note 16, at 1.08.
30 See Phillippe Boustany & Michael Farchakh, Guerrilla Tactics 101: How to Torpedo an Arbitration, Kluwer Arbitration Blog, June 2023, p. 1, https://arbitrationblog.kluwerarbitration.com/2023/06/13/ guerrilla-tactics-101-how-to-torpedo-an-arbitration/.
31 See Günter J. Horvath, Stephan Wilske, Harry Nettlau & Niamh Leimwather, Categories of Guerrilla Tactics, in Guerrilla Tactics in International Arbitration, ed. G.J. Horvath & S. Wilske, Wolters Kluwer, 2013, pp. 5 ss.
32 Intimidation and harassment can occur in various forms, one of them can be accusing the arbitral tribunal of bias without foundation (without exercising the corresponding remedy), or indicating that the defense or due process is being violated without proposing adequate remedies, for example, and it is common, requiring that the tribunal or the arbitral institution decide complex matters in minutes or hours, without justification, see Alain Frecón, Delaying Tactics in Arbitration, AAA Neutrals Conference, 5-6 March 2004, San Antonio, Texas, in Dealing with Delay Tactics in Arbitration, AAA, 2013, p. 36. They may occur in more aggressive and illegitimate forms of threats of violence and even through unauthorized communications or contacts to intimidate the arbitral tribunal, institution, parties, or other participants in an arbitration.
33 See Frecón, supra 32, p. 36, who defines delaying tactics as a reason or excuse that delays the progress of the arbitral proceeding, either by postponing the discussion of a particular issue or its decision, or by confusing the arbitrator as to the merits of the matter, and that contradicts one of the goals of arbitration, such as the expeditious resolution of the case, increasing costs and expenses.
34 Criminal prosecutions usually manifest themselves in arbitrations involving states. Some examples of criminal trials against arbitrators are case no. 1650/2018 decided by the Criminal Court of First Instance in Doha, which sentenced the arbitral panel to three years in prison in an arbitration dispute related to the Qatari Royal family; the case of Peruvian arbitrator Fernando Cantuarias Salaverry against whom the Third Court of Preparatory Investigation of the Specialized Court for Corruption Crimes of Peru, issued preventive detention by Resolution No. 8 of 4 November 2019, see José Tam Pérez & Julio Olórtegui Huamán, Entre plazas de toros y centros agrícolas: Breves comentarios sobre el caso Cantuarias, in Arbitraje. Revista de arbitraje comercial y de inversiones, January-May 2021, No. 1, p. 281, to the most recent case of the Spanish arbitrator Gonzalo Stampa, see Carlos Vals Martínez, El riesgo de ser árbitro: el caso de los Herederos del Sultán de Joló contra el Estado de Malasia ¿Deslealtad al arbitraje? ¿Tácticas de guerrilla al máximo nivel?, Diario La Ley, no. 10464, Tribune Section, 12 March 2024. The risks that arbitrators deal with disputes involving States have been pointed out, with an expression of caution: "if you anger the sovereign, it may bite back!"
35 A recent study on unlawful evidence in arbitration in Joan Picó i Junoy, La prueba ilícita en el arbitraje, in La Ley. Probática, no. 15, 2024, pp. 1-6.
36 Roughly speaking, unlawful parallel proceedings are understood to be those that are followed in manifest contempt or breach of the arbitration agreement. Faced with this situation, some systems have, or admit, anti-suit injunctions, broadly understood as precautionary (or final) decisions issued, in principle, by a state judge ensuring the non-initiation or non-continuation of a parallel proceeding initiated in violation of a choice of court agreement or an arbitration agreement. On the scope and types of injunctions, see David Bean, Isabel Parry & Andrew Burns, Injunctions, 11th ed., Sweet & Maxwell, London, 2012, passim, as well as Michele Angelo Lupoi, Ultime notizie dalla House of Lords (novità del diritto internazionale processuale inglese), in Rivista di diritto processuale, Cedam, Milan, 2003, p. 782, and Mariacarla Giorgetti, Antisuit, cross-border injunctions e il processo cautelare italiano, in Rivista di diritto processuale, Cedam, Milan, 2003, p. 493. At the European level, mention should be made of the West Tankers saga or The Front Comor, in the case of Allianz SpA v. West Tankers Inc., E-185/07, 2009 E.C.R., 2009 WIL 303723. And the background to the cases of Gasser GmbH v. MISAT Srt, C-16/02, 2003 E.C.R. 1-14693 and Turner v. Grovit C-159/02, 2004 E.C.R. 1-3565. The measure may even be issued to ensure that the initiation or desisting of the effects of a parallel arbitration initiated, e.g., contemporaneously with a first arbitration, as was the case in AK Bakri & Sons Ltd and ors v. Asma Abdul Kader Bakri Al Bakri and ors [2017] SC (Bda) 40 Com (26 May 2017). However, anti-arbitration injunctions are less common, in this regard Bean et al., David et al., supra this note, pp. 72, 73.
37 See Gaillard, supra note 15, pp. 1-21.
38 In a recent case, an entire arbitral proceeding was fraudulently simulated, including its award, which was then sought to be enforced in the United Kingdom, in the case: Contax Partners INC BVI v. Kuwait Finance House and others [2024] EWHC 436 (Comm), decided by the High Court of Justice of the United Kingdom on 29 February 2024.
39 One of the novelties in investment arbitration has been to seek to promote transparency through the publicity of arbitral proceedings, as shown by the enactment of the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration approved by Resolution 68/109 of the United Nations General Assembly on 16 December 2013, which in turn has been incorporated into Article 1, paragraph 4 of the UNCITRAL Arbitration Rules, which states: "For investor-State arbitration initiated pursuant to a treaty providing for the protection of investments or investors, these Rules include the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (Rules on Transparency), subject to Article 1 of the Rules on Transparency." See also the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the Mauritius Convention on Transparency) approved by Resolution 69/116 of the United Nations General Assembly on 10 December 2014.
40 The situation is usually somewhat different in the field of investment arbitrations under the rules of the International Centre for Settlement of Investment Disputes (ICSID), which establishes in Article 62(3) of ICSID Arbitration Rules (2022): "Consent to publish the documents referred to in paragraph (1) shall be deemed to have been given if no party objects in writing to such publication within 60 days after the dispatch of the document...." Or in the case of some regulations that have incorporated publication rules with certain limitations, as in the case of AAA/ICDR Arbitration Rules (2021), which establishes in its Article 40.4: "The ICDR may also publish selected awards, orders, decisions, and rulings that have been edited to conceal the names of the parties and other identifying details unless a party has objected in writing to publication within 6 months from the date of the award." In a similar sense, Article 42.5 of CEDCA (Business Center for Conciliation and Arbitration of the Venezuelan American Chamber) Arbitration Rules (2020) establishes that the CEDCA will contribute to the formation of arbitral jurisprudence, making public once all confidential information has been suppressed, the relevant Awards issued under its regulations.
41 See Ibrahim Fadlallah & Dominique Hascher, Les grandes décisions du droit de l'arbitrage commercial, Dalloz, Paris, 2019, p. 178.
42 On the arbitration agreement, see Tratado de derecho arbitral. vol. I. El convenio arbitral, dir. C. Soto Coaguila, Pontificia Universidad JaverianaIPA, Bogotá, 2011, passim; González de Cossío, supra note 8, p. 193; José Carlos Fernández Rozas, Tratado de arbitraje comercial en América Latina, Iustel, Madrid, 2008, p. 595; Bernardo Cremades, El convenio arbitral y sus efectos (Articles 9 y 11 de la Ley 60/2003, de Arbitraje), in Comentario a la Ley de Arbitraje, coord. A. de Martín Muñoz & S. Hierro Anibarro, Marcial Pons, Madrid, 2006, p. 303; Alan Redfern, Martín Hunter, Nigel Blackaby & Constantine Partasides, Teoría y práctica del Arbitraje comercial Internacional, 4th ed., Aranzadi, Spain, 2006, p. 257; Blackaby, Nigel; Partasides, Constantine and Redfern, Alan, Redfern and Hunter on International Arbitration, 7th ed., Oxford, 2022, pp. 29, 49.
43 Expression used by Charles Jarrosson cited in Fadlallah & Hascher, supra note 41, p. 180. In this regard, see Clay, supra note 5, p. 22, for whom the arbitrator's contract derives from the arbitration agreement, which constitutes its source and at the same time ensures its compliance, thus being an inevitable complement.
44 See Philippe Malaurie, Laurent Aynès & Pierre Yves Gautier, Droit des contrats spéciuax, 8th ed., LGDJ, Paris, p. 667.
45 Some systems follow this contractual perspective of arbitration relationships, others follow a "quasi-judicial" perspective. See Blackaby et al., supra note 42, at 5.50. In any event, the latter perspective, as a rule, does not contradict or oppose the contractual perspective.
46 See El Ahdab & Manguy, supra note 20, p. 563; see also Clay, supra note 5, p. 23.
47 See El Ahdab & Manguy, supra note 20, p. 555. See, in this regard, resolutions No. 545/2023 issued by the Provincial Court of Las Palmas de Gran Canaria (Section 5) of 14 July 2023 and No. 5/2023 of the High Court of Justice of Castilla-La Mancha (Civil and Criminal Chamber) of 21 December 2023. The comments on these decisions in Goenechea Permisán, Gorka, Breve caracterización del contrato entre el arbitrar y los litigantes arbitrales, in La Ley. Mediación y Arbitraje, no. 18, 2024, pp. 1-6.
48 See Malaurie et al., supra note 44, p. 667.
49 See Fadlallali & Hascher, supra note 41, p. 179.
50 See Fadlallali & Hascher, supra note 41, p. 208.
51 See Horacio Grigera Naon, What Duties Do Counsel Owe to the Tribunal and Why? Dossier of the ICC Institute of World Business Law: "What Duties Do Counsel Owe to the Tribunal and Why?, Ed. B. Hanotiau & A. Mourre, 2012, p. 9 ss.
52 See Jacques Flour, Jean-Luc Aubert & Eric Savaux, Droit civil. Les obligations. L acte juridique, 17th ed., LMD, Paris, 2022, pp. 928, 929, and Article 1200 of the French Civil Code (2016).
53 This limitation on the intervention of the State courts in arbitration has acquired the status of a fundamental principle, known as the "principle of minimum judicial intervention." Thus, Article 5 of the Model Law of the United Nations Commission on International Commercial Arbitration states: "In matters governed by this Law, no court shall intervene except in cases where this Law so provides." See Howard M. Holtzman & Joseph Neuhaus, A Guide to UNCITRAL Model Law on International Commercial Arbitration: Legislative Histoiy and Commentary, Wolters Kluwer, 1989, p. 217.
54 See Matti S. Kurkela & Santtu Turunen, Due Process in International Commercial Arbitration, 2d ed., New York, 2010, p. 185 ss.
55 See Adolfo Hobaica, Codigo de Buenas Practicas Arbitrates del Club Espaiiol del Arbitraje (C.BB.PP/Cea 2019), in Spain Arbitration Review: Revista del Club Espaiiol del Arbitraje, Extraordinary Issue, Club Espaiiol del Arbitraje, Madrid, 2020, p. 258.
56 See El Alidab & Manguy, supra note 20, p. 645.
57 When it is stated that, for example, the parties have the right of access to official justice regardless of whether there is an arbitration agreement or an ongoing arbitration process, it is forgotten that the arbitration agreement is a manifestation of party autonomy by which the parties limit or restrict, precisely, the right of access to the organs of administration of justice of the State and the State (or States) recognizes and gives binding force to the choice of the parties. See Francisco Gonzalez de Cossio, Derecho constitucional arbitral, en Revista de Investigaciones Juridicas. no. 44, ELD, Mexico, 2020, p. 182.
58 See El Ahdab & Manguy, supra note 20, p. 645.
59 See Gary Born, International Commercial Arbitration, 2d ed., Kluwer Law, 2015, p. 2850.
60 For example, Rogers, supra note 16, 1.06, comments that a survey conducted by the International Bar Association (IBA) Task Force on Counsel Conduct in Arbitration confirms the confusion as to which rule is applicable to the conduct of representatives of parties in arbitration, thus 63 percent of respondents considered that the rules applicable to their conduct were those of the country that qualifies them as lawyers, 27 percent did not know but preferred to apply the rules of their country as a precaution, 10 percent had no opinion or considered that the rules of their professional qualification did not apply, 56 percent considered that their conduct should also be subject to ethical standards different from those of their origin of qualification, and 87 percent were not sure or did not know what rules of conduct their counterpart's representatives were subject to.
61 In fact, Gary Born proposes as a solution, the adoption of uniform international rules of professional conduct, applicable to counsel in international arbitral proceedings. See Born, supra note 59, p. 2876.
62 For example, it is pointed out that the application of rules of conduct to lawyers may or may not have territorial limitations, depending on the regulatory order applicable to the professional. See Born, supra note 59, p. 2853.
63 See Born, supra note 59. p. 2845.
64 See Hernando Díaz-Candia, El correcto funcionamiento expansivo del arbitraje (Teoría general del arbitraje), 3d ed., Torino, Caracas, 2016, p. 168.
65 The situation is discussed, for example, in China, see Wei Sun, Foreign Attorneys as Party Representatives in Arbitrations Seated in PR China, Kluwer Arbitration Blog, October 2020, https://arbitrationblog .kluwerarbitration.com/2020/10/05/foreign-attorneys-as-party-repre sentatives-in-arbitrations-seated-in-pr-china/#:~:text=However%2C%20 these%20provisions%20do%20not,at%20least%20one%20foreign%20 party. Likewise, limitations are reported for foreign lawyers to act in Egypt, see Khaled El Shalakay, Arbitration Guide. IBA Arbitration Committee (Egypt), IBA, January 2018, p. 4. See Born, supra note 59, p. 2836.
66 E.g., Art. 5 Reg. UNCITRAL (2021). See Clyde Croft, Christopher Kee & JeffWaincymer, A Guide to UNCITRAL Arbitration Rules, Cambridge University Press, 2013, p. 79.
67 In Austria, § 594(3) of the Code of Civil Procedure (ZPO). In Colombia, Article 73. 3 of the Statute of National and International Arbitration (2012). Section 16 of the Uniform Arbitration Act of the United States. In this sense, Article 18 of the AAA/ICDR Arbitration Rules (2021), establishes: "Any party may be represented in the arbitration..." in coordination with Canon IV. C of the ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes (2004), which states: "The arbitrator should not deny any party the opportunity to be represented by counsel or by any other person chosen by the party." The interpretation has been favourable to representation by both lawyers and non-lawyers. See Martin F. Gusy, James M. Hosking & Franz T. Schwarz, A Guide to the ICDR International Arbitration Rules, Oxford, p. 133; also Born, supra note 59, p. 2840. See also § 1042 of German Code of Civil Procedure (ZPO), Article 373.5 of the Swiss Code of Civil Procedure (2008), Article 30.2 of the Spanish Arbitration Law (2003), Section 3a of the Malaysian Arbitration Act (2018), Article 31 of the Mauritius International Arbitration Act (2008), Article 9 of the National and International Commercial Arbitration Law of Panama, Article 37.4 of the Peruvian Arbitration Law (2008), Section 36 of UK the Arbitration Act (1996).
68 Legal systems such as Mexico's, despite not expressly providing for a solution in the law, following the normative provisions of Articles 1434 (right of the parties to be treated equally and to be given the opportunity to assert their rights) and 1435 (freedom to choose the applicable procedure) of the Commercial Code, have allowed some institutional regulations to be issued in a fairly broad manner on representation as is the case of Article 27 of the Arbitration Rules of the Mexico Arbitration Center (2022). In cases where there is no express legislation on the scope or limitation of the representation of parties in international arbitrations, it is argued that in order to give effect to the 1958 New York Convention and to recognize the effectiveness of an arbitration agreement, it is necessary to allow the parties to be represented by lawyers or non-lawyers whether from the country where the arbitration is located or from another country. See Born, supra note 59, p. 2843.
69 See Kurkela & Turunen, supra note 54, p. 191. See also Born, supra note 59, p. 2845.
70 One of the reasons for the amendment of Article 5 of the UNCITRAL Arbitration Rules in 2010 (previously Article 4) was precisely to avoid such an interpretation. See Croftet al., supra note 66, pp. 79, 80.
71 See case Hrvatska Elektroprivreda dd v. The Republic of Slovenia, CLADI, No Arb/05/24, 6 May 2008, para. 26 ss. See also Art. 17. 2 R. CCI (2021) and Art. 16. 4 R. CAS (2021).
72 See Boustany & Farchakh, supra note 30, pp. 1-4. See Born, supra note 59, p. 2848.
73 In this regard, Martínez Val, J. M., Abogados y Abogacía, 4th ed., Barcelona, Bosch, 1999, pp. 27 and 28.
74 See Blackaby et al., supra note 42, p. 201.
75 The hypothetic clash between Rule 8.3 of the ABA Model Rules of Professional Conduct: "(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority," with arbitral procedural rules, as Rule 45 the AAA Commercial Arbitration Rules and Mediation Procedures (2022): "(a) Unless otherwise required by applicable law, court order, or the parties' agreement, the AAA and the arbitrator shall keep confidential all matters relating to the arbitration or the award" or the equivalent Article 40 of the AAA/ICDR International Arbitration Rules (2021): "Except as provided in Article 40.3, unless otherwise agreed by the parties or required by applicable law, the members of the arbitral tribunal and the Administrator shall keep confidential all matters relating to the arbitration or the award."
76 A common example in this field is the difference in the approach of systems with respect to issues such as prior contact or possibility of preparation of the witness or expert witness, which may vary according to the rules of the place of arbitration. See Blackaby et al., supra note 42, p. 201. On the treatment of the expert evidence in English civil procedure, see Paula Luoghlin & Stephen Gerlis, Civil Procedure, 2d ed., Cavendish, Great Britain, 2004, p. 456. Likewise, the different approach of the lawyer with respect to professional secrecy and his duty or not to produce evidence considered confidential or privileged. See José-Miguel Judice, Dealing with Privilege Claims in International Arbitration: A Pragmatic Approach, ICC Dispute Resolution Bulletin, Issue 2, 2019, p. 39.
77 There is no doubt that among the duties of every lawyer are to provide the assistance of culture and technique for the defense of his client with probity, honesty, discretion, efficiency, disinterestedness, truthfulness and loyalty, confidentiality, integrity, and independence. And that this mission or social priesthood has and fulfills direct public utility. See Piero Calamandrei, Demasiados abogados, trans. J.R. Xirau, Ediciones Jurídicas Europa-América, Buenos Aires, 1960, p. 22. There are instruments at the international level such as the IBA's International Code of Ethics (1988) or the IBA's International Principles of Conduct for the Legal Professions (2011), which can guide the actions of lawyers in arbitration, in addition to the rules of conduct that are applicable to them, but it has been said that they are not sufficient but, above all, its application does not seem to be binding for arbitrations.
78 However, there are instruments that seek the uniformity of lawyers' rules of ethics in arbitration matters, such as the Code of Ethics for European Lawyers (2006), which establishes in its Article 4.5: "The rules governing a lawyer's relations with the courts apply also to the lawyer's relations with arbitrators and any other persons exercising judicial or quasi-judicial functions, even on an occasional basis."
79 See Born, supra note 59, p. 2877.
80 It is convenient to bear in mind that when talking about the conduct of the parties, in most cases, we are in the presence of actions of their representatives, hence a possible double subjective imputation, that is, the situation of disadvantage attributable to the party, due to the choice and, on the other hand, that attributable to the representative himself (whether he is a legal professional or not). In the Commentaries to the IBA Guidelines on Party Representation in International Arbitration (2013) 1-3 we read: "A Party Representative, acting within the authority granted to it, acts on behalf of the Party whom he or she represents. It follows therefore that an obligation or duty bearing on a Party Representative is an obligation or duty of the represented Party, who may ultimately bear the consequences of the misconduct of its Representative."
81 Some arbitration rules incorporate rules of conduct addressed to representatives, for example, Article 18 of the AAA/ICDR International Arbitration Rules (2021) establishes: "The conduct of party representatives shall be in accordance with such guidelines as the ICDR may issue on the subject," referring to the Standards of Conduct for Parties and Representatives of the AAA-ICDR; in the same line, Article 18.5 of Rules of Arbitration of the London Court of International Arbitration (2020) establishes: "Each party shall ensure that all its authorised representatives appearing by name before the Arbitral Tribunal have agreed to comply with the general guidelines contained in the Annex to the LCIA [London Court of International Arbitration] Rules, as a condition of such representation. In permitting any authorised representative so to appear, a party shall thereby represent that the authorised representative has agreed to such compliance."
82 In this sense, see the Code of Conduct and Best Practices for the Parties Involved in the Arbitration Process of the Arbitration Tribunal of Barcelona-TAB.
83 See Article 2.1(j).
84 See Article 1.14.
85 According to the text of the aforementioned Code of Ethics, the instrument develops and establishes principles of conduct that are mandatory for arbitrators, parties, and witnesses participating in an arbitral proceeding, developing the principles of justice and independence (Art. 1), commitment (Art. 2), effectiveness of the procedure (Art. 3), confidentiality (Art. 4), honesty (Art. 5), and the duty of a respectful attitude (Art. 6).
86 See Article 1.4.
87 According to the Code of Ethics, the duties of the parties are loyalty, immediacy, and good faith (Art. 18), the duty of respect, the duty to avoid confrontations and to make the proposals through the appropriate channels (Art. 19), the duty to avoid generating disproportionate expenses and the duty not to engage in delaying or obstructionist tactics (Art. 20).
88 The annex consists of six provisions, the first of which states that the purpose of the guidelines is the proper and equitable conduct of arbitral proceedings by the authorized representatives of the parties to an arbitration, without its purpose being to impair the duty of loyalty of the representative to the party or the effective presentation of the case to the arbitral tribunal, nor is it intended to derogate from rules applicable to the parties' representatives, such as codes of conduct or professional regulations; the second establishes the prohibition of obstructive tactics or tactics that tend to compromise the purpose of the award, including repetitive challenges to the appointment of arbitrators or the authority of the arbitral tribunal, when the challenges are unfounded; the third provides for the prohibition of making false statements to the arbitral tribunal or to the court (LCIA Court); the fourth refers to the prohibition of the preparation or presentation of false evidence; the fifth establishes the prohibition of concealing or participating in the concealment of documents required by the arbitral tribunal; the sixth establishes the prohibition of unauthorized contact with the members of the arbitral tribunal, including secretaries, as well as with the members of the arbitral institution, except for contact with the person in charge of the administrative affairs of the procedure; and the seventh grants the authority to the arbitrator to determine whether any of the parties' representatives have violated the general guidelines and to impose the corresponding sanctions provided for in Article 18.6.
89 We can read from the Notes: "67. Parties and arbitral tribunals are encouraged, where appropriate, to adopt or otherwise be guided by the IBA Guidelines on Party Representation in International Arbitration."
90 Today called the Club Español e Iberoamericano de Arbitraje (CEIA).
91 On the Code of Best Practice, see the special issue prepared by the Spain Arbitration Review: Revista del Club Español del Arbitraje, Número Extraordinario, Madrid, 2020, passim.
92 The Code is divided into six sections and four annexes, Section One: Arbitral Institutions; Section Two: Arbitration Process (with Annex A: CEA Model Arbitration Rules and Annex B: Model Arbitration Clause); Section Three: Duties of Arbitrators (with Annex C: Model Acceptance by the Arbitrator); Section Four: Duties of Lawyers; Section Five: Duties of Experts (with Appendix D: Acceptance form by the expert); and Section Six: Duties Relating to Financing. On disclosure duties relating to funding, it is worth noting that the Code took into account the Code of Conduct for Litigation Funders published by the Association of Litigation Funders of England & Wales (2018); the Report of the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, Chapter 7, Principles of Best Practice (2018), and the Hong Kong Code of Practice for Third Party Funding (2018).
93 The guidelines are divided into four sections: (1) general guidelines for all participants in an international arbitration (representatives/lawyers, arbitrators, staffof arbitral institutions acting in the particular case, tribunal secretaries, witnesses, experts, stenographers, interpreters, translators, etc.); (II) guidelines for the representatives of the parties; (III) guidelines for arbitrators; and (IV) guidelines for other participants.
94 Section II of the guidelines, addressed to the representatives of the parties, is divided into four guidelines, the first guideline (II.A) establishes the duty of the representatives of the parties to act cooperatively in the process, both with the counterparty and with the arbitral tribunal; the second guideline (II.B) the duty of party representatives to act with respect and courtesy, avoiding offensive or disrespectful conduct against the participants of an arbitration; the third guideline (III.C) the prohibition of making false statements, and of correcting them if they become known to be false; the fourth guideline (III.D) the prohibition of obstructing or delaying the arbitral proceedings, except for legitimate reasons, including the duty not to compromise the award.
95 Other participants are understood to mean personnel employed by arbitral institutions acting in a particular case, factual witnesses, experts (whether appointed by the tribunal or appointed by the parties), professionals, and all other persons participating in the arbitration proceedings in any capacity.
96 According to the Preamble to the Guidelines, they are not intended to replace the professional or disciplinary regulatory provisions applicable to representatives, or those provided for in the rules of procedure applicable to arbitration, nor are they intended to replace the powers reserved to local or national disciplinary bodies responsible for regulating and monitoring the conduct of lawyers. The instrument is divided into 27 Guidelines: Guideline 1 refers to its scope of application and its consensual nature; Guideline 2 refers to the power of the arbitrator to interpret the Guidelines; Guideline 3 refers to the non-overlapping or overlapping of the Guidelines with other applicable standards of conduct; Guideline 4 establishes the duty of the party's representatives to identify themselves as such before the other party and the arbitral tribunal, as well as to immediately inform them of any change in representation; Guideline 5 establishes the duty to refrain from the incorporation of a representative that may generate a conflict of interest; Guideline 6 establishes the possibility for the arbitral tribunal to safeguard the integrity of the arbitration to totally or partially prevent the incorporation of a representative; Guideline 7 establishes the general prohibition of ex parte communication between a representative and an arbitrator; Guideline 8 regulates the cases in which ex parte communication between a representative and an arbitrator is not considered inappropriate; Guideline 9 regulates the prohibition of representatives from knowingly making false statements or, as it is known, the duty of frankness or honesty toward the arbitral tribunal; Guideline 10, the duty to correct false statements made by the representative; Guideline 11 regulates the duty not to present false witness statements and expert statements, and how to correct this situation; Guidelines 12 to 17 regulate matters relating to appropriate conduct or best practices in the production of documents, including the duty of the representative to inform the client of the obligation to complete and preserve evidence in the production of documents; the duty of representatives to participate in document production procedures without causing damage, delay, or for improper purposes; the duty of the representatives of the parties to inform their clients about the implications and consequences of a document production procedure, and ultimately the orientation toward a duty of collaboration; Guidelines 18 to 25 regulate interactions between representatives of parties and expert witnesses, inter alia, the duty to inform, the possibility of assisting the witness in his or her preparation, the limits of assistance in| preparation and the duty to ensure that the witness or expert participates objectively in the proceedings; and finally Guidelines 26 and 27 are on remedies for inappropriate conduct.
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