The Bar Council has recently published a guidance note regarding barristers from the same chambers appearing as counsel and arbitrator in the same arbitration. The Bar Council, mindful of concerns raised on this issue by various bodies and international clients who are not accustomed to the “structure and culture of the English bar“, has sought to ensure that the “valuable protection given to clients by the availability of the independent bar is not compromised.” The guidance is primarily focused on the situation where a barrister acts as an advocate in circumstances where another member of that barrister’s chambers acts as arbitrator in the same arbitration. The guidance makes clear that the independence of self-employed barristers means that no actual conflict exists from the legal perspective of the English courts in such circumstances and states that, particularly in certain specialist disputes, “due to the limited number of experts in the given field, it is common for barristers from the same chambers to appear against one another” and that this ensures that clients “have access to the greatest possible pool of specialist advocates.” Despite this, the guidance acknowledges that there may be an international perception that a “barrister acting as an arbitrator may be biased in favour of the party who is represented by counsel from the same chambers”, either for monetary or personal reasons. To address this concern, the guidance recommends that:
- separate clerks should be designated to deal with the matter on behalf of the arbitrator and on behalf of the advocate;
- there should be “state of the art arrangements” to ensure that communications destined for one member do not come into the hands of the other member; and
- there should be arrangements for the secure storage of papers.
- In addition, the guidance states that good practice dictates that in circumstances where a barrister comes to understand that he or she has been instructed in an arbitration where one or more members of the arbitral tribunal are barristers in the same set of chambers, prompt disclosure ought to be made by those instructing the barrister to the legal representatives of the other side. In this context, it is particularly important that any changes to the counsel teams are immediately communicated to the arbitral tribunal. In a 2008 investment treaty arbitration before the International Centre for Settlement of Investment Disputes, the tribunal required the withdrawal of a last minute addition to one of the party’s counsel team who was from the same chambers as one of the arbitrators. The guidance suggests that, in such ‘eleventh-hour’ situations, immediate notice should be given to the client and that there is an ‘enhanced possibility’ of an adjournment or that the arbitrator may need to step down.
The guidance can be downloaded at http://www.barcouncil.org.uk/media/376302/bc_information_note_-_perceived_conflicts_in_international_arbitration_-_060715.pdf