The Authority of Para-regulatory Texts - Chapter 06 - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37
Author(s):
Marco Stacher
Page Count:
20 pages
Media Description:
1 PDF Download
Published:
October, 2015
Description:
Originally from Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37
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1. INTRODUCTION
This chapter discusses the “authority of para-regulatory texts”.
This title implies there is a well-established definition of the term
“para-regulatory text” (PRT),1 which is, however, not the case.
Arbitration textbooks do not address the issue in an abstract manner,
but devote themselves to providing guidance on certain texts that are
generally considered to be PRTs, e.g., certain rules and guidelines that
the IBA drafted. One inherent difficulty in discussing the issue of the
“authority” of PRTs, therefore, is that it is not precisely clear what a
“PRT” is. One approach of coping with this lack of starting point
would be to draft a definition of the term “PRT”. However, this
approach appears overly theoretical and bears the risk of not including
certain texts in the analysis.
The other approach is to take the consensus as a starting point
that certain texts, e.g., the IBA Guidelines on Conflicts of Interest (IBA
Conflicts Guidelines), are PRTs. Assessing the characteristics of these
(specific) texts may assist in bringing life into the (general) term “PRT”,
as well as their authority. This approach, indeed, appears better suited
as it does not demand a start from scratch. Moreover, it appears safe as
the IBA Conflicts Guidelines are in line with what is prima facie taken to
characterize PRTs: (i) They are “para”-regulatory in the sense that they
do not form part of statutory law, and (ii) they are “regulatory” as the
drafters did not intend to resolve issues of impartiality or
independence arising in a specific arbitration; rather, they intended to
craft rules that are appropriate on a general level and may apply in any
given arbitration.2 This does, e.g., distinguish PRTs from the articles of
an association, such as the ASA, which are tailor-made with that one
specific association in mind. (iii) Moreover, the IBA Conflicts
Guidelines are expressly worded and gathered in a “text”, in contrast,
e.g., to the lex mercatoria,3 transnational law4 or concepts such as the
group-of-companies doctrine,5 which is not put down in writing in a
clear-cut manner, but was extracted from certain case law.
Avoiding defining “PRTs” by assessing certain specific PRTs does
not solve the other two issues that are inherent in the title, namely the
type of “authority” that PRTs may enjoy and the object over which
PRTs may have “authority”. Indeed, PRTs may potentially affect (i) the
parties to an arbitration, (ii) arbitral tribunals, (iii) arbitral institutions
and even (iv) state courts. The analysis of a PRT’s authority, therefore,
needs to distinguish between these different players. Vice versa, it
needs to distinguish which of these players can rely on a PRT’s
authority. Eventually, as regards the type of authority of PRTs, this is
the very object of this note, and the below analysis intends to establish
whether PRTs are vested one specific type of authority, varying
degrees thereof or no authority at all. Indeed, there is only one
conclusion that may be drawn from the very outset and that may be
taken as the second starting point:
While the definition of “para-regulatory texts” may be unclear, it
cannot possibly include the applicable national law. The term “pararegulatory”
would otherwise be devoid of any meaning. PRTs, hence,
unlike the lex arbitri, do not form part of those rules that automatically
apply from the perspective of the relevant legislative branch, as does,
e.g., Art. 182(3) of the Swiss Private International Law Statute (PILS),
which (i) guarantees the parties their due-process rights, which (ii) eo
ipso binds parties as well as arbitrators if the arbitration is seated in
Switzerland,6 and which (iii) is enforced by the state-court system in
set-aside proceedings. PRTs cannot have this immediate, state-court
controlled authority. Rather, they need a connecting factor, i.e., a
provision in the applicable national law that brings them into play.