Soft Law in International Arbitration - Second Edition

The body of provisions called “protocols,” “guidelines,” “checklists” or even “rules” has grown significantly in international arbitration over recent decades. Unlike national or international law, or institutional arbitral rules, these provisions are not mandatory for arbitration participants. They are quasi-legal norms and may range from provisions that can be incorporated into the parties’ agreement to arbitrate, to suggestions as to the best practices that arbitrators and other arbitration participants may choose to follow. These materials are often collectively referred to as “soft law.” They are designed to address the spaces intentionally left blank by the substantive law and arbitration rules.

The new Second Edition of Soft Law in International Arbitration has evaluated and collected these disparate materials for the benefit of practitioners, academics, and students. It provides a guide to what the editors consider to be the most useful among them. But now the new second edition covers almost double the topics and nearly triple the materials offered in the previous lauded edition. Prominent members of the international arbitration community explain what the soft law says on issues such as drafting arbitration clauses and awards, conducting commercial arbitration proceedings, thorny ethical issues in arbitration, how to handle and disclose documents and present evidence, control time and costs, and now also includes discussion of topics that have steadily grown in importance in recent years: the use of third-party funders, experts, tribunal secretaries , and virtual hearings.

Available exclusively in a digital format, the second edition offers bookmarks, numerous cross-reference links, and hyperlinks to facilitate the study of these guidelines, offering quick access to the text of these useful instruments. Practitioners, academics, and students will find these new features, the broader access to soft law materials, and the expanded editors' commentary a welcome resource when the arbitration rules fall silent.

PDF OF TITLE PAGE AND T.O.C.

Introduction: Soft Law -- a Panacea for International Arbitration?
Lawrence W. Newman and Kabir Duggal

PART I. COMMENTARY

Chapter 1
Drafting Arbitration Clauses Before and After a Dispute
Damien Nyer and Allyson Reynolds

Chapter 2
Soft Law in the Organization and General Conduct of Commercial Arbitration Proceedings
Thomas J. Stipanowich

Chapter 3
Virtual Hearings in International Arbitration
Melida Hodgson and Sebastian Canon Urrutia

Chapter 4
Ethics in International Arbitration: Soft Law Guidance for Arbitrators and Party Representatives
Edna Sussman and Sherman W. Kahn

Chapter 5
Disclosure of Documents and Presentation of Evidence in International Arbitration
Lawrence W. Newman

Chapter 6
Third-Party Funders in International Arbitration
Jeffrey Commission and Giulia Previti

Chapter 7
Soft-Law Guidence for the Use of "Experts" in International Arbitration
Rekha Rangachari and Kabir Duggal

Chapter 8
Tribunal Secretaries in International Arbitration
Marike R.P. Paulsson

Chapter 9
Guidance on Drafting Awards in International Arbitration
Michael J. Radine

PART II. SOFT LAW MATERIALS

1. AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes

2. AAA Drafting Dispute Resolution Clauses: A Practical Guide

3. AAA-ICDR Virtual Hearing Guide for Arbitrators and Parties Using Zoom

4. ACICA Online Arbitration Guidance Note

5. Africa Arbitration Academy Protocol on Virtual Hearings in Africa

6. CIArb Code of Professional and Ethical Conduct

7a. CIArb Guidelines on Drafting Arbitral Awards (Part I-General)

7b. CIArb Guidelines on Drafting Arbitral Awards (Part II-Interest)

7c. CIArb Guidelines on Drafting Arbitral Awards (Part III-Costs)

8. CIArb Guideline Interviews for Prospective Arbitrators

9. CIArb Guidelines Managing Arbitrations and Procedural Orders

10. CIArb Guideline Party-Appointed and Tribunal-Appointed Experts

11. CIArb Guidelines for Witness Conferencing in International Arbitration

12. Code of Best Practices in Arbitration of the Spanish Arbitration Club (Club Español de Arbitraje)

13. College of Commercial Arbitrators Protocols for Expeditious, Cost-Effective Commercial Arbitration

14. CPR Guidelines for Arbitrators Conducting Complex Arbitration

15. CPR Guidelines on Early Disposition of Issues in Arbitration

16. CPR Protocol on Determination of Damages in Arbitration

17. CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration

18. Delos Checklist on Holding Arbitration and Mediation Hearings in Times of COVID-19

19. HKIAC Guidelines on the Use of a Secretary to the Arbitral Tribunal

20. HKIAC Guidelines for Virtual Hearings

21. IBA Guidelines on Conflicts of Interest in International Arbitration

22. IBA Guidelines for Drafting International Arbitration Clauses

23. IBA Guidelines on Party Representation in International Arbitration

24. IBA Rules of Ethics for International Arbitrators

25. IBA Rules on the Taking of Evidence in International Arbitration

26. ICC Guidance Note on Conflict Disclosures by Arbitrators

27. ICC Issues Checklist for Arbitrators Drafting Awards

28. ICC Note on the Appointment, Duties, and Remuneration of Administrative Secretaries

29. ICC Techniques for Controlling Time and Costs in Arbitration

30. ICC Techniques for Managing E-Document Production

31. ICCA Guidelines on Standards of Practice in International Arbitration, The ICCA Reports No. 9

32. ICCA Note on Arbitral Secretaries, The ICCA Reports No. 1

33. ICCA-NYC Bar-CPR Cybersecurity Protocol in International Arbitration

34. ICCA-QMUL Task Force on Third-Party Funding

35. ICDR Guidelines for Arbitrators concerning Exchanges of Information

36. ICSID Guidance on Virtual Hearings

37. ICSID and UNCITRAL Code of Conduct for Arbitrators in Investor-State Arbitration Version 5

38. Prague Rules on the Efficient Conduct of Proceedings in 1580 International Arbitration Taking of Evidence

39. Seoul Protocol on Video Conferencing in International Arbitration

40. SIAC Practice Note on Appointment of Administrative Secretaries

41. SIAC Practice Note on Arbitrator Conduct in Cases Involving External Funding

42. SIAC Practice Note on the Code of Ethics for an Arbitrator

43. UNCITRAL Notes on Organizing Arbitral Proceedings

General Editors and Contributors

LAWRENCE W. NEWMAN

Lawrence W. Newman is Of Counsel in the Litigation Department of Baker & McKenzie LLP in New York, where his practice is focused on international litigation and arbitration. He was the Chairman of the National Committee of Claimants (USICC) in arbitrations against Iran in the Iran-U.S. Claims Tribunal and has represented clients in numerous commercial and investment arbitrations before various tribunals around the world. He was, from 2003 to 2007, the Chairman of the International Disputes Committee of the New York City Bar and was, from 2008 to 2012, the Chairman of the Arbitration Committee of the International Centre for the Prevention of Resolution and Conflicts (CPR). He is currently Chairman of the Arbitration Subcommittee of the Chartered Institute of Arbitrators. Mr. Newman has been, since 2010, the Chairman and convening member of the International Arbitration Club of New York. He has been responsible since 1982 for the "International Litigation" column of the New York Law Journal and is the editor and author of numerous books and articles on litigation and arbitration. He is a Fellow of the College of Commercial Arbitrators, a Fellow of the Chartered Institute of Arbitrators, an elected member of the American Law Institute and a member of various other bar and international arbitration organizations.

MICHAEL J. RADINE

Michael J. Radine is a partner at Osen LLC, a law firm focused on complex counterterrorism financing litigation. Mr. Radine regularly appears before the Second Circuit Court of Appeals and the Southern and Eastern District Courts of New York, as well as the District Court for the District of Columbia. Previous to his time at Osen LLC, Mr. Radine was an associate in the New York office of Gibson, Dunn & Crutcher LLP, where he specialized in international arbitration and litigation. At Gibson, Mr. Radine represented clients in commercial and treaty cases under the auspices of the ICC, LCIA, ICSID, and the Society of Maritime Arbitrators. Mr. Radine is a graduate of Columbia University School of Law, University of Chicago, and Washington University in St. Louis.

At Columbia, Mr. Radine was Managing Editor of the Journal of Transnational Law and a Teaching Fellow.

KABIR DUGGAL

Dr. Kabir Duggal is an attorney in Arnold and Porter's New York office focusing on international arbitration and public international law matters, serving both as arbitrator and mediator. He is recognized as a “Chartered Arbitrator” (the highest ranking for arbitrators) by both the Chartered Institute of Arbitrators and the Asian Institute of Alternative Dispute Resolution. He also frequently serves as an expert on international arbitration and public international law matters. He is also a passionate advocate for diversity, equity, and inclusion issues and frequently writes and speaks on these issues. Dr. Duggal is also a Lecturer-in-Law at Columbia Law School, an adjunct Professor at Fordham Law School, and a Course Director and a Faculty Member for the Columbia Law School-Chartered Institute of Arbitrators Comprehensive Course on International Arbitration. He also acts as a Consultant for the United Nations Office of the High Representative for Least Developed Countries (UN-OHRLLS) on the creation of a novel "Investment Support Program." Dr. Duggal works closely with the U.S. Department of Commerce's Commercial Law Development Program (CLDP) as an expert and has undertaken capacity-building workshops in Georgia, Kosovo, Bosnia & Herzegovina. He has also conducted training and capacity-building sessions for several Governments including Colombia, Saudi Arabia, Myanmar, India, Philippines, among others, on public international law and dispute resolution matters. He also serves on the Federal Republic of Somalia’s New York Convention Task Force as well as the WTO Negotiating Team (International Board). He has published over 60 articles and has spoken at over 300 arbitration events all over the world. He is also the Co-Founder of REAL (Racial Equality for Arbitration Lawyers), a non-profit seeking to create greater representation in international arbitration. He is a graduate of the University of Mumbai, University of Oxford (DHL-Times of India Scholar), NYU School of Law (Hauser Global Scholar), Leiden Law School (2019 CEPANI Academic Prize), and is currently pursuing an SJD Degree from Harvard Law School. Dr. Duggal is admitted to practice law in New York, District of Columbia, England & Wales (as a Barrister), and in India.

Associate Editor

SHIYU (JENNY) LIANG

Shiyu (Jenny) Liang is an associate in the Litigation and Government Enforcement Practice Group at Baker McKenzie's New York office. She graduated from Harvard Law School, where she was President of the Harvard International Arbitration Law Students Association and the European Law Association. At law school, she was also part of the WTO moot court team, which won second place in the global final round. She focuses her practice on white collar compliance & investigations, international arbitration and commercial litigation. She has experience conducting anti-corruption investigations for multinational companies operating in China, Vietnam and Russia. She also assisted with a large international arbitration case for a major Brazilian company. Born and raised in Shanghai, Ms. Liang also speaks Mandarin, German and French.

Praise for the first edition:

"A valuable and timely compilation of international arbitration guidelines and protocols, with commentary by distinguished authors; a required reference for all international arbitration practitioners and scholars."
--Gary Born

"The role of soft law in international arbitration practice has increased tremendously in recent years. This volume comes as a most welcome collection of, and commentary on, all the relevant soft law texts."
--Gabrielle Kaufmann-Kohler

"This is a timely publication and is a valuable compendium of materials which enhance a wider understanding, particularly within the wide diversity of participants, of contemporary international arbitration practice. Of particular importance are the introductions to the thematically-arranged sections. Accessibility to information about practice is a key way for international arbitration to grow, and this publication is an important aspect of that laudable aim."
--Klaus Reichert

"Soft Law in International Arbitration is a very timely and useful contribution to the literature of the field. Soft law, which has emerged in an increasing pace over the past two-three decades, comprises a variety of guidelines, protocols, notes, rules etc. This book not only compile but also analyse and comment on some of the most important documents of this wealth of material. It is sure to become a very useful handbook for everybody involved in international arbitration."
--Ulf Franke

"Just like the increase in the number of commercial and investment cases, so has the number of guidelines to the international arbitral procedure run wild. The Newman and Radine book dissects the essentials in this world of abundance and works as a valuable reference for the experienced professional and as a valuable guide for the fresh arrival."
--Sigvard Jarvin

"International arbitration has become increasingly complex and involves many more lawyers than it had previously. This means there has been a real need for guidance to ensure common understandings of the baseline principles and practices by all participants in an arbitration. Soft law has developed to meet this need. But soft law has developed through ad hoc private initiatives. What has been lacking to date has been an authoritative selection of the most significant expressions of the soft law phenomenon, and their organization into a single useful volume. This volume admirably meets this need, and provides the added bonus of the commentaries of expert practitioners."
--Bernardo M. Cremades

"The new compendium is a one-stop shop for arbitral soft-law and a powerful reminder of the best practices that have developed for international arbitration."
--Sabine Konrad

"Highly recommended--an essential collection for the arbitral tool-box."
--V.V. Veeder

"This work is going to be a valuable desktop reference for all arbitration practitioners, particularly in highlighting the CPR Protocols, which are not widely known outside the US. Having all the major soft law protocols in one place with authoritative commentaries will greatly assist all practitioners in being able to check quickly on what to look out for when preparing a case for written presentation, oral argument or (for arbitrators) presiding and determining the issues."
--Michael Hwang

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