An Overview of Existing Para-regulatory Texts (PRTs): Analysis, Facts and Figures - Chapter 01 - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

Author(s): 

Daniele Favalli

Page Count: 

16 pages

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1 PDF Download

Published: 

October, 2015

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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

International arbitration is an increasingly accepted means for

dispute resolution that is no longer precluded to a small group of

practitioners. The steadily growing volume of claims settled through

arbitral proceedings has required an equivalent increase in arbitration

practitioners and arbitrators. Accordingly, the arbitration community

continues to grow.1

 

One of the consequences of the experienced growth is the

disappearance of the formally known and small community of savvy

practitioners and arbitrators. There is an emergence of a new

generation of practitioners who is looking for ways to learn about their

chosen field. Today, practitioners come from all over the world with

backgrounds in vastly different legal traditions and require a common

denominator to find a mutually agreed upon arrangement.

 

Aside from a general increase in practitioners, other trends have

also become notable, an example of the most prominent being the

perceived “Americanization” of arbitration through the introduction of

written witness statements, cross-examination demands, and extended

document production requests.

 

In contrast thereto, most known and tested arbitration rules

continue to be limited to the bare minimum of rules, thereby, keeping

the framework of arbitration short and, as desired by many, flexible in

its application. In other words, parties use short sets of rule that are

adjusted to the individual needs of the users. While this is desired and

often an important part of choosing arbitration over domestic

proceedings, questions will inevitably arise over how unregulated

occurrences, which would often be addressed differently within

individual legal traditions, should be handled.

 

It is in this situation, when new rules and regulation commenced

to appear as a sort of suggested way of doing arbitration business or,

in other words, soft law which is to be referred to as “para-regulatory

texts” (“PRTs”).

 

These PRTs did, from the beginning, not strive for authority and

were, for the most part, defined as offers to guide and assist arbitration

users with respect to issues which were neither covered by arbitration

laws, nor by applicable arbitration rules. The likely most widely

known PRT is the Guideline on the Taking of Evidence in International

Arbitration issued by the International Bar Association (“IBA”).

 

In the following, the questions on the nature of PRTs are

addressed, the different designations and common elements will be

analyzed, the drafting methods and authors are reviewed briefly, and

finally, key issues of debate and open questions are highlighted.

 

 

2. DIFFERENT NAMES, NO DEFINITION, BUT COMMON

ELEMENTS FOR PRTS

 

2.1 How PRTs Are Referred To

 

PRTs have been issued using a variety of different terms. The

most common names for PRTs, which one may encounter, are the

following:

 

• Guide

• Guidelines

• Protocol(s)

• Techniques

• Code(s)

• Rules

• Note(s)

• Recommendations

• Minimum standards

 

It would appear that there is no preferred term or trend for

references to PRTs. The designations used range from the mandatory

sounding “Rules” on the one side to “Notes” and mere

“Recommendations” on the other.