ICDPASO Commercial Arbitration Rules Interpretation Series 9

In light of the high degree of specialization and complexity in international commercial arbitration, the smooth progression of arbitral proceedings often necessitates the involvement of professional arbitration legal practitioners.. Compared to litigation, public awareness of arbitration remains relatively limited. Without the assistance of professional representatives, parties may easily commit procedural oversights due to unfamiliarity with the rules, which can hinder the smooth progress of the arbitration or affect the effective enforcement of the award. Therefore, appointing representatives with specialized knowledge and experience to participate in arbitration has become an essential pathway and common practice for safeguarding the procedural rights of the parties and enhancing the efficiency of arbitration.

The role of representatives permeates the entire arbitration process, including the drafting and submission of documents, the organization and examination of evidence, as well as statements and arguments during hearings. Their professional performance directly impacts the efficiency of the arbitral proceedings and the fairness of the award. However, the involvement of representatives may also introduce certain procedural risks, such as ambiguous authorization, delays in procedural progress, or even conflicts of interest arising from changes in representation. Hence, a clear and operable system governing representatives is crucial for ensuring the fairness, efficiency, and certainty of arbitral proceedings. Such a system must fully respect the parties’ autonomy in selecting their representatives while empowering arbitral institutions and tribunals with necessary procedural authority to mitigate potential risks and uphold procedural integrity. 

This article aims to deeply interpret the logic and applicable standards of the "representatives" system in Article 9 of the ICDPASO Commercial Arbitration Rules, and provide clear behavioral norms for parties and their representatives to participate in arbitration through comparative analysis with major international arbitration rules.

I. ICDPASO Commercial Arbitration Rules Article 9. Representatives

Article 9. Representatives

1.A party may entrust an representative to participate in the arbitral proceedings. The Court of Arbitration and/or the Arbitral Tribunal may require the parties to submit a power of attorney specifying the basic information, specific entrusted matters and authority of the representative.

2.If a party entrusts another representative or changes its representative, it shall immediately notify the Court of Arbitration and/or the Arbitral Tribunal and other parties.

3.The Court of Arbitration and the Arbitral Tribunal (after its formation) may, after consultation with the parties, take necessary measures to avoid conflict of interest and ensure the impartial conduct of the arbitral proceedings.

II.  Interpretation of the "Representative" Clause

First and foremost, it is necessary to clarify the distinctions between the representative systems in litigation and arbitration. Under the Chinese legal framework, litigation representation is primarily governed by the "Civil Procedure Law of the People's Republic of China" (hereinafter referred to as the "Civil Procedure Law").The scope of representatives is limited to lawyers, legal workers, close relatives, etc. Foreign lawyers are generally not permitted to represent parties in Chinese courts in the capacity of legal counsel. Furthermore, the number of representatives is statutorily capped at one to two individuals.

In contrast, representation in arbitration is based on the "Arbitration Law of the People's Republic of China" and specific arbitration rules, with party autonomy at its core. The scope of representatives is broader and more flexible, and there is usually no statutory limit on the number of arbitration representatives, reflecting a greater respect for the parties' autonomy. In international commercial arbitration, numerous arbitration rules generally authorize parties to appoint foreign lawyers from countries other than the seat of arbitration as their representatives (the scope of such authority may vary depending on the procedural laws of different countries).

In litigation proceedings, courts primarily focus their review on whether a representative possesses lawful statutory qualifications. Comparatively, in arbitration, tribunals or arbitration institutions not only examine qualifications but also retain specific review and intervention rights over the selection or change of representatives, often based on considerations such as preventing conflicts of interest. On the basis of following the general norms of the arbitration representative system, Article 9 of ICDPASO further constructs a hierarchical representatives system based on party autonomy as the basis, procedural notification as the obligation, and prevention of conflicts of interest as the guarantee.

Article 9, paragraph1 establishes the inherent right of the parties to entrust an representative to participate in arbitration on their own initiative. As analyzed earlier, this is a significant feature that distinguishes arbitration from judicial litigation procedures, particularly accommodates the practical needs in international arbitration, where parties may require the assistance of foreign counsel or the formation of an agent team tailored to their specific requirements. By further authorizing the arbitration court or tribunal to request the submission of a "power of attorney", it is clarified that the "power of attorney" submitted by the parties must be verified by the relevant responsible parties, thereby fundamentally determining whether the representatives can participate in the arbitration proceedings. The requirement of "specifying entrusted matters and authority of the representative" aims to prevent procedural disputes arising from ambiguous powers of representatives in important matters such as mediation, ensure that agency actions are carried out within the scope explicitly authorized by the parties, and safeguard the substantive rights of the parties from unauthorized disposal.

The obligation of "immediately notify" as stipulated in paragraph 2 is a fundamental requirement for procedural legitimacy and predictability. It ensures that all parties can be promptly informed of and reach the correct case contact in the event of a change in representatives, thereby safeguarding smooth communication channels and preventing errors in the service of documents or delays in procedural deadlines due to information asymmetry.

Paragraph 3 grants the Court of Arbitration and the Arbitral Tribunal the procedural power to intervene proactively. In international arbitration practice, arbitrators are often senior professionals active in specific fields, and there may be various conflicts of interest between them and large law firms or specific representatives. If one party changes their representatives during the arbitration proceedings, especially after the formation of the arbitral tribunal, and there is a conflict of interest between the new representatives and an arbitrator, it will seriously threaten the fairness of the proceedings and the acceptability of the award. This clause authorizes the Court of Arbitration and the Arbitral Tribunal to take "necessary measures", with the core of preventing such risks, which is a key mechanism for maintaining the credibility of the arbitration procedure. In addition, Article 15, paragraph 5 of ICDPASO Rules stipulates that If the representative entrusted by a party and the arbitrator constitute a situation of challenges after the formation of the Arbitral Tribunal, the said party has no right to apply for challenges, provided that, it shall not affect the right of other parties to apply for challenges. This rule not only effectively prevents parties from setting obstacles to the procedure through malicious selection of representatives, but also provides guarantees for the fair and efficient progress of the arbitration proceedings.

III.  Jurisprudential Basis and Value Balancing of the Arbitral Representation System

Article 9 follows several core principles of international commercial arbitration and seeks a balance between these principles in its design:

The principle of party autonomy: The free choice of a trusted representatives by the parties is the basis for exercising the power of procedural disposition and achieving effective defense. Article 9, paragraph 2of ICDPASO Commercial Arbitration Rules explicitly confirms this. Even when taking the "necessary measures" stipulated in paragraph 3, the rule requires "consultation with the parties", reflecting respect for the procedural subject status of the parties.

The procedural management power of the Arbitral Tribunal and the Court of Arbitration: In order to ensure the efficiency, orderliness, and fairness of the arbitration procedure, the Arbitral Tribunal and the Court of Arbitration that manages cases are granted corresponding procedural management power. The provision of "may require the parties to submit a power of attorney" in paragraph 1, the notification object set forth in paragraph 2 including the Court of Arbitration and/or Arbitral Tribunal, and the provision of "taking necessary measures" in paragraph 3 are all manifestations of this principle. It allows neutral third parties to moderately supervise and intervene in the arrangement of the parties' representatives, providing a bottom line guarantee for safeguarding procedural interests.

The principle of due process: "Immediate notification to other parties" in paragraph 2 is a necessary requirement of due process. Ensuring that the other party is aware of their opposing party is a prerequisite for ensuring equal confrontation between both parties. The phrase "consultation with the parties" before taking measures in paragraph 3 also reflects the protection of the affected parties' right to be heard.

The principle of independence and impartiality of arbitration: The rules of paragraph 3, through forward-looking authorization, allow for preventive measures to be taken when conflicts of interest may arise or become apparent, rather than only being remedied through recusal applications or revocation of rulings afterwards, reflecting a high emphasis on procedural fairness.

Article 9 of the ICDPASO Commercial Arbitration Rules does not emphasize a particular principle in isolation, but rather achieves a dynamic balance between party autonomy and procedural management, procedural efficiency and fair protection. The parties are free to appoint representatives, but must authorize and notify them in a transparent manner. The program needs to proceed steadily, but the Court of Arbitration and the Arbitral Tribunal retains the authority to intervene in order to guard against the risk of conflicts of interest.

IV. Comparative Analysis of the "Representatives" Clause in Relevant Arbitration Rules

Currently, the rules of commercial arbitration recognize the freedom of the parties to appoint representatives and establish corresponding obligations for notification of the changings and a certain degree of authorization verification mechanism. The differences in the issue of representative among various arbitration rules are essentially a balance between the autonomy of the parties' autonomy and the procedural control of the arbitral tribunal or institution. This difference is mainly reflected in the potential conflicts of interest that may arise when the parties change their representatives after the formation of the arbitral tribunal. In this regard, mainstream arbitration rules such as ICC, LCIA, HKIAC, SIAC, etc. explicitly authorize arbitration tribunals or institutions to take "necessary measures" based on consulting the parties' opinions. This power aims to regulate the abuse of procedural rights and ensure the fairness and efficiency of the procedure. Its essence is not to deny the autonomy of the parties, but to exercise the legitimate right of procedural management based on reasonable authorization.

Regarding the addition or change of representatives, LCIA1Rules explicitly stipulated that such changes must be approved by the Arbitral Tribunal. The SIAC rules distinguish between the pre - and post formation stages and require that an application for a change of representatives be submitted and approved by the arbitral tribunal after the formation of the tribunal2. Such rules grant the arbitral tribunal greater authority to review and manage the qualifications of representatives and potential conflicts of interest related to them. On the other hand, ICDPASO adopts a "party notification" mechanism that is closer to those used by the ICC3 and HKIAC Rules4 . It does not require approval for changes of representatives, but emphasizes the obligation to " immediately notify" and focuses intervention on "taking necessary measures" afterwards to resolve existing or potential conflicts. This model not only ensures the control of the program, but also gives the parties a more autonomous space, making the program more convenient to start.

Article 9 of ICDPASO Rules explicitly grants power to both the Court of Arbitration and the Arbitral Tribunal. This is similar to the arrangement under the SIAC rules5, reflecting the division of responsibilities between the Court of Arbitration and the Arbitral Tribunal in procedural management matters. The intervention of the Court of Arbitration before or in the initial stage of the formation of the Arbitral Tribunal can identify and resolve risks earlier, and effectively connect with the power of the Arbitral Tribunal after its formation.

In terms of taking measures, the LCIA rules provide a detailed list of sanctions that can be taken against authorized representatives who violate general guidelines6.Article 9, paragraph 3 of the ICDPASO Rules authorize the Court of Arbitration and the Arbitral Tribunal to take "necessary measures" in a general manner, and does not define the above measures as "sanctions". The Court of Arbitration and the Arbitral Tribunal may adopt measures that are both lenient and strict, such as requesting changes in representatives, suspending procedures, and excluding representatives from participating.

V. Practical Guidance on Appointing Representatives

When the Court of Arbitration and the Arbitral Tribunal request the submission of a power of attorney, the parties should actively cooperate and provide timely documents that meet the requirements. Therefore, in order to effectively apply Article 9 of ICDPASO and provide effective authorization proof, the parties and their representatives should pay attention to the following practical points:

（1）Delegation and Authorization of Representatives

The parties shall appoint the representatives as soon as possible after the commencement of the arbitration proceedings, prepare a complete power of attorney, and promptly inform them of the authorization status. The power of attorney should be as detailed as possible, including:

1.Information on the represented case: The power of attorney should specify in detail the parties involved in the case, the case number, and the contract involved, to ensure that the power of attorney clearly points to a specific case;

2.Basic information of the representatives: name, position, practicing institution, contact information (such as delivery address, telephone, email);

3.Entrustment matters and authorities: It should be clarified whether it is a "general representatives" or a "special authorization". It is recommended to clearly list major powers such as recognizing, waiving, changing arbitration requests, mediation, and selecting arbitrators. In addition, in arbitration practice, documents exchanged between both parties are often primarily received by representatives. If the representative is not granted clear authority to receive legal documents, it is recommended to clarify it through special prompts or other means to avoid procedural delays caused by delivery issues.

4.Form requirements for power of attorney: The power of attorney should be in writing, signed or stamped, and clearly indicate the authorization time to avoid uncertainty about which one to rely on due to multiple submissions of authorization.

（2）Addition and change of representatives

When adding or changing representatives, the parties shall fulfill the obligation of "immediately notify", that is, to notify without delay after making the changing decision, and must be sent to the Court of Arbitration, all members of the arbitral tribunal, and effective contact information of the opposing party and its representatives in accordance with the requirements of the rules. Delay in notification may constitute a procedural violation and may result in unsupported costs or delays.
 When planning to change or entrust other representatives, especially when hiring lawyers from large international law firms, parties should proactively conduct conflicts of interest searches and assessments to anticipate and evaluate the risks of conflicts of interest. If there is a relationship between the new representatives and a known arbitrator that may raise reasonable suspicion, a cautious decision should be made.

If the Court of Arbitration or Arbitral Tribunal decides to take measures after consulting the parties, the parties shall take it seriously and state their views within the prescribed time. The proposition should revolve around whether there are real and unacceptable risks of conflicts of interest, and whether the 'necessary measures' comply with the principle of proportionality.

（3）Considerations of the Court of Arbitration and the Arbitral Tribunal

Before the formation of the Arbitral Tribunal, the Court of Arbitration was the main body of procedural management. The arbitral tribunal may conduct a formal review of the power of attorney submitted by the parties. When receiving a notice of representatives change, a preliminary assessment should be made to determine whether there is a clear risk of conflict of interest, and communication with the parties involved can be initiated first. After the formation of the Arbitral Tribunal, this power shall be transferred to the Arbitral Tribunal for exercise. When deciding whether and how to take "necessary measures", the Court of Arbitration and the Arbitral Tribunal usually consider the following factors:

The primary principle is the party autonomy; If the representatives is changed at the stage where the arbitration proceedings has already begun or when the trial is about to begin, its impact on the procedure is much greater than that of the written statement stage; Assess whether the nature and severity of the conflict of interest are sufficient to affect the arbitrator's independent judgment; Can risks be resolved through disclosure or avoidance of specific issues by arbitrators or representatives, rather than directly excluding representatives; The potential cost waste or time loss caused by such changes or additions..

Therefore, when considering changing representatives in arbitration proceedings, the parties also need to take into account the above factors, carefully verify the qualifications and background of the new representatives, and avoid authorizing candidates who may bring procedural risks; Secondly, the parties should not simply equate the replacement of representatives with an arbitration strategy, but should evaluate its actual necessity and procedural impact to ensure that the arbitration process can proceed smoothly and efficiently.

VI. Conclusion: The significance of Article 9 for the integrated development practice of international commercial arbitration

Article 9 of the ICDPASO Commercial Arbitration Rules, the "Representative" clause, aligns with internationally advanced arbitration practices. It serves not only as a formal confirmation of the parties' right to appoint representatives but also as a vital foundation for constructing a secure and efficient arbitration process.

The clause enhances procedural certainty and predictability. By stipulating clear requirements for powers of attorney and timely notification obligations, it avoids procedural disputes arising from unclear representative identity or authority, allowing all parties to focus more on the substantive issues of the case. Secondly, the clause explicitly designates the prevention of conflicts of interest arising from changes in representatives as a duty of the Arbitration Court and the arbitral tribunal, reflecting a proactive commitment to safeguarding procedural fairness. This helps block potential risks that could affect the validity of the award at an early stage and strengthens the trust of parties in the fairness of ICDPASO arbitration. The clause leans more towards ex-post supervision rather than ex-ante approval, maintaining a degree of flexibility in authorization methods. This enables the Arbitration Court and the arbitral tribunal to make judgments that best serve the overall interests of the proceedings based on the specific circumstances of each case, demonstrating a pragmatic and flexible approach to procedural management.

Against the backdrop of increasingly complex international commercial transactions and the growing globalization of legal practice, modern arbitration rules must be supported by a professionalized representative system. Article 9 of the ICDPASO Rules not only grants parties a high degree of autonomy in selecting representation but also, through necessary procedural safeguards, prevents abuse of rights and enhances arbitration efficiency. By balancing party autonomy with procedural advancement, the clause solidifies the foundation of an arbitration process centered on the parties' rights and the fairness of the proceedings.

1.LCIA Arbitration Rules art. 18.3 (2020), which provides that: “Following the Arbitral Tribunal’s formation, any intended change or addition by a party to its authorised representatives shall be notified promptly in writing to all other parties, the Arbitral Tribunal, the tribunal secretary (if any) and the Registrar; and any such intended change or addition shall only take effect in the arbitration subject to the approval of the Arbitral Tribunal.”

2.SIAC Rules art. 10.5(2025), which provides that: “After the constitution of the Tribunal, any change by a party to its representatives must be first proposed to the Tribunal. The Tribunal may, after considering the views of the parties, allow the proposed change of representatives…”

3.ICC Arbitration Rules art. 17.1(2021), which provides that: “Each party must promptly inform the Secretariat, the arbitral tribunal and the other parties of any changes in its representation.”

4.HKIAC 2024 Administered Arbitration Rules art.13.8(2024), which provides that: “After the arbitral tribunal is constituted, any proposed change or addition by a party to its legal representatives shall be communicated promptly to all other parties, the arbitral tribunal and HKIAC.”

5.SIAC Rules art. 10(2025), which provides that: “…10.3 Prior to the constitution of the Tribunal, any change or addition by a party to its representatives must be communicated to the Registrar and the other parties…10.5 After the constitution of the Tribunal, any change by a party to its representatives must be first proposed to the Tribunal…”

6.LCIA Arbitration Rules art. 18.6 (2020), which provides that: “In the event of a complaint by one party against another party’s authorised representative appearing by name before the Arbitral Tribunal (or of such complaint by the Arbitral Tribunal upon its own initiative), the Arbitral Tribunal may decide, after consulting the parties and granting that authorised representative a reasonable opportunity to answer the complaint, whether or not the authorised representative has violated the general guidelines. If such violation is found by the Arbitral Tribunal, the Arbitral Tribunal may order any or all of the following sanctions against the authorised representative:(i) a written reprimand; (ii) a written caution as to future conduct in the arbitration; and (iii) any other measure necessary to fulfil within the arbitration the general duties required of the Arbitral Tribunal under Articles14.1(i) and (ii).”