Party conflict in a dual mandate: disclosure and change of counsel

A party representative may not advise or represent both sides in the same arbitration dispute. Section 10 RAO sets a clear boundary for a dual mandate. Once a party conflict is identified, the situation must be explained clearly and separate representation must be organised for each affected party.

The practical difficulty often appears in connected contracts, group structures or earlier advice. The decisive questions are which party received advice, what the earlier matter covered and whether the current dispute concerns the same or a related matter.

This article deals exclusively with a conflict involving a party representative in a dual mandate in arbitration. Arbitrator bias, third-party funding and protection of trade secrets raise separate questions.

When two mandates create a party conflict

A dual mandate creates a practical conflict risk when a lawyer has acted for several participants and those participants now have opposing interests in the same arbitration dispute. A connection between two contracts is not enough by itself. The parties, instruction, advice given and concrete dispute must be examined together.

The history deserves particular care. Advice on a framework agreement may matter in a later dispute under a call-off order. The same applies to amendments, security arrangements, guarantees or intra-group agreements when they reveal information about the later opposing party’s position.

A mandate map helps with the first review. It records the client, the companies or individuals advised, the documents reviewed and the subject of the current arbitration. This assignment makes the relationship between earlier advice and the current dispute visible.

What Section 10 RAO means for a dual mandate

Section 10 RAO requires a lawyer to refuse representation or even legal advice when the lawyer has represented the opposing party in the same or a related matter. The provision also prohibits serving or advising both sides in the same dispute.

The rule therefore covers advice given without ongoing court or arbitration representation. The relevant question is whether the lawyer advised the opposing party on the same matter or on a matter with a connected factual and legal core. The label used for the engagement cannot answer that question on its own.

In arbitration, the conflict may become visible before the case begins or after proceedings have started. The timing does not remove the need for a careful review. It does affect the practical solution because submissions, deadlines, evidence and notices may already exist.

Why disclosure and consent require separate review

Once a possible conflict is identified, it should be explained clearly to the affected participants. The explanation should state which party the lawyer previously advised and how that work connects to the current arbitration. Clear information allows each party to make an informed decision about the next procedural step.

Disclosure does not replace the review under Section 10 RAO. The provision bars serving both sides in the same dispute. Consent therefore does not simply remove the statutory boundary. Further professional or procedural questions depend on the particular facts.

The roles must remain distinct. A party conflict concerns the lawyer acting for a party. The jurisdiction of the arbitral tribunal and arbitrator bias concern different issues. The existing article on the conflict check before appointing an arbitrator addresses the arbitrator’s position.

How to organise a change of counsel during arbitration

If a party conflict is identified during arbitration, each affected party needs a separate representation structure without avoidable delay. The former lawyer should organise the procedural position with each party separately and identify the documents, deadlines and notices relevant to the transition.

Changing counsel involves more than naming a new lawyer in the next submission. The arbitration agreement, appointment documents, submissions, exhibits, procedural orders, minutes and communication with the tribunal should be secured. The new lawyer must be able to assess which statements have already been made and which deadlines are approaching.

The communication to the tribunal depends on the applicable procedural rules and the stage of the case. It should identify the representation clearly and resolve practical matters such as service address, outstanding deadlines and future communication. A concise notice prevents further confusion in the conduct of the case.

The page on preparing arbitration proceedings provides wider orientation on claims, evidence and the procedural calendar. It answers a different question from the review of a dual mandate.

Which documents matter for the review

For a reliable assessment, documents should be collected by party and by instruction. Useful records include engagement letters, powers of attorney, advice agreements, file notes, contract drafts, amendments and key correspondence. The current request for arbitration or statement of claim belongs in a separate part of the chronology.

The relationships between the participants should also be recorded. For companies, identify names, contractual roles, group relationships and the chain of connected agreements. For individuals, clarify whether they are parties themselves or acted for a company.

The review should show which information from the earlier mandate could be relevant to the current dispute. A factual description of the documents and topics is sufficient at this stage. A premature assessment of confidentiality or evidential weight can distract from the dual-mandate question.

Common mistakes in a party conflict

A frequent mistake is to assume that short earlier advice cannot matter. Even a focused review may provide information about a contract, strategy or negotiating position. The substance of the earlier instruction is therefore decisive.

It is also risky to treat disclosure as a cure. The parties need a clear account of the mandate history. The statutory boundary in Section 10 RAO remains a separate question.

Another mistake is an unstructured change of counsel while a deadline is running. The transition needs a complete file, a coordinated service address and a clear list of pending steps. Otherwise the information needed for a claim or defence can be lost.

Finally, a party conflict should not be confused with arbitrator bias. The article on which parties are bound by an arbitration agreement concerns the parties to the arbitration. These issues may appear together, but they have different objects of review.

Which next step is appropriate

Begin with a separate overview of participants, mandates and connected contracts. Compare the current arbitration with the earlier matters. If a conflict exists, representation for each affected party must be organised independently.

A complete file and a short chronology are central to the transition. The chronology should identify the former lawyer, affected parties, advice period, current procedural stage and pending deadlines. This gives new counsel a workable basis for review.

The page on reviewing an arbitration clause helps with prior questions about the parties, scope and procedural framework. In a dual-mandate situation, the role of the lawyer under Section 10 RAO remains the distinct first issue.

Common questions on dual mandates

May a lawyer represent both sides in the same arbitration dispute?

No. Section 10 RAO prohibits serving or advising both sides in the same dispute. The concrete mandates and dispute scope must be reviewed to determine whether the rule applies.

Does disclosure of a dual mandate cure the party conflict?

Disclosure clarifies the mandate history. It does not automatically remove the statutory boundary in Section 10 RAO. Separate representation for each affected party must be organised.

What should be transferred when counsel changes during arbitration?

The arbitration agreement, submissions, exhibits, procedural orders, minutes, notices, deadlines and tribunal correspondence are important. A short chronology supports the handover.

Does Section 10 RAO also cover earlier legal advice without arbitration representation?

Yes. The provision expressly refers to giving legal advice. The key question is whether the opposing party was advised in the same or a related matter.

Is a party conflict the same as arbitrator bias?

No. A party conflict concerns the lawyer representing a party. Arbitrator bias concerns the independence or impartiality of a member of the arbitral tribunal.

Next step

Contract, arbitration clause, correspondence and deadlines should be collected. It can then be assessed whether negotiation, preservation or arbitration is central.