It is perhaps one of the most basic norms of international arbitration that a party may be represented by an authorised representative appearing before the arbitral tribunal. This is enshrined in the LCIA Rules (Article 18.1); the SIAC Rules 10.1; and in the ICC Rules 26.4, to name but a few.

It should also be understood that a party need not be represented by a lawyer at all in international arbitration. Indeed, a dispute might exclusively or overwhelmingly involve issues of quantification which are more suited to the skills of an accountancy firm or a specialist forensic analyst or involve technical issues best understood by those familiar with them or the protection of intellectual property another area which may require specialist presentation made by a mixture of lawyers and non-lawyers.

The fundamental position in private dispute resolution is that party autonomy should prevail and that a party gets to decide who should be authorised to represent it.

There are some restrictions and restraint to this principle in that a proposed change of representative should be promptly notified to the tribunal who might refuse permission if it could compromise the composition of the tribunal or otherwise affect the finality of the award – see LCIA Rules 18.4; SIAC Rules 10.4 and ICC Rules 17.1 and 17.2. These provisions are, however, designed to protect the integrity of the process rather than to restrict a party’s choice.

Nevertheless, what has not been the subject of restraint or control under any of these rules is the ability to appoint foreign counsel of choice, even where that lawyer would be appearing in an arbitration that involved the application of foreign laws. None of these rules restrict the appointment of counsel so that the lawyer could only appear when arguing a case involving the laws of the country in which that person is qualified.

There is good reason for this beyond simply the question of party autonomy. International arbitration will most commonly involve a whole range of laws: the law of the matrix contract governing the party’s relationship, laws applicable to particular contractual provision such as the obtaining of a license, the law of the separable arbitration agreement, the procedural law of the arbitration, the law of the place of performance, especially in cases involving illegality, the law governing any delictual, tortious or quasi contractual obligations, any relevant sanctions law, the law governing legal professional privilege if raised before a tribunal, the law governing confidentiality of particular documents, and the many different legal systems that may or may not be engaged when considering enforcement.

The notion that an arbitration is either “domestic” or” international” simply by reference to the governing law of the contract or the identity of the parties is now largely consigned to an era far away in the rear-view mirror. Moreover, that distinction even if maintained under a national arbitration law, cannot form a rational basis for permitting the imposition of any restriction of the freedom of choice of counsel depending upon the exigencies of the particular dispute.

It is in this context that the report in Global Arbitration Review (GAR dated 28 September 2026) of a point taken in argument in an arbitration heard in India by a distinguished international panel consisting of Juliet Blanch, Sir Bernard Rix and Lord Goldsmith is to the say the least somewhat troubling. Happily, the right result was reached by the tribunal in that matter, but nevertheless the fact that the point was taken at all and that it may well lead to further litigation in the Indian courts is no ground for complacency.

At the start of the arbitration according to the report of the arbitration in GAR, counsel for one of the parties objected that well known overseas counsel had been instructed to argue the case for the other side. It was said that this counsel was not qualified in India and that since the contract in question before the Tribunal was governed by Indian law, the proposed overseas counsel would be acting in breach of Bar Council of India Rules if that counsel continued to appear in India. This was said to be so if that counsel addressed the tribunal on any question of Indian law or indeed even if that counsel did not directly address questions of Indian law. This was said to be the case because there might be inadvertent overlap with questions of Indian law in any submission made on the facts or indeed in a line of cross examination.

The application was rejected by the Tribunal as GAR reported. The Tribunal ruled that under the SIAC Rules, which governed the arbitration in question, a party was permitted to appoint counsel of its choice whether or not that person was qualified under India law and that neither the Bar Council of India’s new Bar Council Rules nor the Advocates Act prevented such appointment. In this ruling GAR reported that the Tribunal followed the guidance of the Supreme Court of India in Bar Council of India v Balaji. [1]

It is suggested that this is most definitely a step in the right direction, but it may well not be the last word. It might be argued that the latitude given to foreign lawyers on a “fly in fly out” footing does not extend to arbitrations in India governed by Indian law.

If such point were taken in the courts in India, it is respectfully suggested that this would be a serious backwards step.

Parties will vote with their feet and ensure that international arbitration is not seated in India or that hearings do not take place, there so they can retain the ability to choose their trusted counsel to argue a matter.

There is also a great deal of misunderstanding expressed in this arena which needs to be unpicked. Fundamentally there is a bright line distinction between private dispute resolution in mediation or arbitration or expert determination and appearance in a public court of law. It is understandable that a local bar council imposes rules and restrictions on appearance before a court of law but being blunt, a local bar council has no role whatever to play in imposing restraint on a party’s choice of representation in a private dispute resolution process.

It is only necessary to take three examples. First, assume parties have reached agreement in the event of dispute for it to be referred to expert determination who is free to take into account the laws of India, England and the State of Ruritania as the expert deems fit. If that determination were to take place in India, is it really arguable that there is a public interest in disallowing a party from choosing a single lawyer qualified in England to argue the matter before the expert. Second, assume the same by reference to mediation, the answer is the same. Why should it then be different in arbitration? In the Supreme Court of India decision in Balaii reference was made to restrictions on Indian qualified lawyers appearing in the English courts. This is correct, but entirely irrelevant. There is no restriction on Indian qualified lawyers arguing an arbitration in London, Paris, Singapore or New York. That is the correct comparison.

This is another area of policy where India needs to face the future with confidence. There is of course a multitude of extremely skilful lawyers practising in India. The profession should be secure in the knowledge that they will earn their rightful share of the market and at the same time will get to work alongside some of the best lawyers working internationally which will only accelerate and enhance the attraction of having disputes resolved in India. The ability to appoint counsel of choice is too deeply entrenched. No country can swim against this tide and survive.

*David Joseph KC is a barrister practising at Essex Court Chambers in London. He also sits as an arbitrator. He is also the author of Burgenland, Village Secrets and the First Tremors of the Holocaust (Amberley 2023). David is the President and founder of Chamonix Vallee Classics which runs each year for a week in Chamonix from the end of July to beginning of August. The views expressed are his alone.

[1] 2018 5 SCC 379.