Duties of Lawyers in the Arbitration

PROHIBITION OF COMMUNICATION WITH THE ARBITRATORS

Lawyers must not engage in secret written or verbal communication with an arbitrator in order to exchange information that is (directly or indirectly) related to the arbitration proceedings.

DUTIES OF INTEGRITY

Veracity of Pleaded Facts

Lawyers shall refrain from knowingly making false affirmations, both in their written submissions and in their oral pleadings.

This duty shall be especially strict in summary or expedited proceedings, such as those for injunctive relief, or where the counterparty fails to appear.

In the event that a party’s lawyer discovers that he or she has made false statements of fact, he or she must inform the party of this situation and of his or her obligation to rectify it.

Reasonableness of Legal Grounds

Lawyers shall refrain from knowingly citing non-existent legal grounds and or from distorting the true meaning of case law by using incomplete or tendentious citations.

This duty shall be especially strict in summary or expedited proceedings, such as those for injunctive relief.

Veracity of the evidence

Lawyers shall refrain from collaborating or participating, directly or indirectly, in the creation or submission of false evidence.

In the event that a party’s lawyer discovers that he or she has submitted false evidence, he or she must inform the party of this situation and of his or her obligation to rectify it.

Production of Documents

When there is a reasonable presumption of the potential emergence of a dispute, lawyers must inform the client of its duty not to destroy any documents in its possession or under its control and which may prove relevant to the dispute.

Lawyers must inform the client of its obligation to produce the documents in question or those ordered by the arbitrators, and of the consequences for failing to do so.

Lawyers shall refrain from concealing or destroying documents that may prove relevant for the resolution of the dispute or which must be produced in the document production stage, or from participating in their concealment or destruction.

In relation to applications for document production, lawyers must refrain from:

a) Making applications with tortious intent or knowingly pleading false facts;

b) Making objections to a counterparty’s applications by knowingly pleading false facts; and

c) Justifying the failure to submit certain documents by knowingly pleading false facts.

If in the course of an arbitration a lawyer discovers the existence of a document in his or her client’s possession that should have been submitted but was not, he or she must immediately inform his or her client of the duty to submit it.

Witness and Expert Evidence

Lawyers shall refrain from:

a) Submitting in the arbitration proceedings any witness testimony or expert report that they know to contain false information; and

b) Calling a witness or expert for their case knowing of the falsehood of the corresponding testimony or report.

Lawyers may collaborate with witnesses and experts in the preparation of their testimonies and reports.

Witnesses may be paid reasonable compensation for their time employed and the costs and expenses incurred.

CONFIDENTIALITY

Lawyers must keep confidential any information that they acquire in the arbitration proceedings. Such information includes:

a) The submissions of the parties;

b) The evidence presented;

c) Any settlement agreement that the parties may reach in relation to the dispute under arbitration; and

d) The decisions and the award.

The duty of confidentiality does not prevent lawyers from publishing an anonymised list of the proceedings in which they have participated, indicating for example:

a) A generic mention of the nature of the parties (e.g., company, entity or natural person);

b) The nationality or geographical origin of the parties;

c) The type of arbitration, institutional or ad hoc;

d) The names of the arbitrators and of the other lawyers;

e) The sector or industry involved in the dispute;

f) The law governing the merits of the dispute;

g) The seat or place and the language of the arbitration; and

h) Whether the arbitration is pending or closed.

BREACH

If a lawyer breaches any of the duties described in this Section, then the arbitrators, after hearing both parties and the lawyer concerned, may adopt any of the following measures:

a) Caution the lawyer verbally or in writing;

b) Draw adverse inferences when evaluating the evidence;

c) Take the lawyer’s conduct into consideration when awarding costs;

d) Notify the matter to any Bar Associations with which the lawyer is registered, for the determination of ethical responsibilities; and

e) Adopt any other measure in order to preserve the integrity of the proceedings.

-courtesy 2019 Code of Best Practices in Arbitration of the Spanish Arbitration Club (SAC Code).