How Should Para-regulatory Texts Be Drafted? - Chapter 05 - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37
Author(s):
C. Ryan Reetz
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
There is considerable room for debate over the definition of
a para-regulatory text, much less the proper subjects and roles of
such texts. Depending upon the type of text that is desired—for
example, a text that is itself binding upon the parties, a text that
merely purports to describe existing binding rules, a text that is
intended to exert persuasive but not controlling influence, or a
text that is intended to provide the parties with various options
from which they may select—the proponents may wish to take
very different approaches to preparation and drafting.
Three of these types of texts have fairly clear antecedents,
and do not present particularly unique problems in drafting.
Binding texts have been drafted in the form of legislation and
rules (when of general application) and contracts (when of
application only to particular parties). Similarly, many texts
have been written for the purpose of describing and interpreting
existing binding rules, often in the form of treatises and
commentaries. Finally, documents that merely offer a set of
options to parties exist in the form of checklists, lists of optional
contractual provisions, and the like. Challenges do exist, of
course, in drafting each of these types of documents, but in each
case there is a vast body of accumulated experience and wisdom
concerning how to approach the problem.
However, the fourth type of text—one that intends to assert
persuasive but not controlling influence—is less common and
presents a unique set of challenges. Such a text makes
normative claims on participants’ behavior without itself
being—or being derived from—a set of binding rules. In order
to be relevant, the text must make a persuasive case for its
normative claims, resulting in its general voluntary acceptance
by participants even though applicable legal and contractual
rules would not require them to do so.1 In other words, similar
to the notion that government’s authority is derived from the
consent of the governed,2 the normative force of a non-binding
para-regulatory text is derived from its widespread acceptance
—which in turn, is a function of the text’s perceived value and
legitimacy.
This discussion focuses on the drafting of para-regulatory
texts that fall into this fourth category and consequently are
considered as a form of soft law in the international arbitration
context. While not formally binding in the absence of an
agreement by the parties, these documents are intended to
provide rules or principles to guide decision-making or the
parties’ behavior in the context of international arbitration. As
discussed below, their persuasiveness and effectiveness depend
upon their perceived value and legitimacy. Although the
substantive content of a given text is one of the most important
determinants of its success, the degree of its acceptance can also
be dramatically enhanced (or reduced) by the approaches
employed in its drafting process, its form, and its language.
2. THE DRAFTING PROCESS
2.1 Considerations in Drafting
The drafters of a para-regulatory text face a number of
decisions, not only with respect to the content of the resulting
text, but also in connection with the process to be followed for
developing it. If the process can be designed so as to increase
users’ confidence in the resulting product, the text is more likely
to be successful. As a result, the drafters should seek to
incorporate, at minimum, the following factors into their process.
incorporate, at minimum, the following factors into their process.