Arbitration Guidelines: Straitjacket or Compass? - Chapter 37 - Between East and West: Essays in Honour of Ulf Franke
Dr. Hans Van Houtte has sat in over 150 cases as an arbitrator—most often as chairman—in commercial and investment arbitrations before numerous international arbitration institutions. He teaches at the Faculty of Law, Leuven University and directs the Institute for International Trade Law.
Originally from Between East and West: Essays in Honour of Ulf Franke
In recent times, many arbitration institutions and other bodies have issued guidelines for arbitrators on how to conduct arbitration proceedings. This short contribution will discuss the relevance for and impact of these guidelines on the arbitration process.
It will first depict how the arbitration scene has evolved in the last forty years as arbitration guidelines have to be seen against the historical background of deregulation (II). It then will describe different “guidelines” which have already been issued (III). This description will be limited to guidelines on the conduct of proceedings. That will exclude, for instance, the Guidelines of the Arbitration Institute of the Stockholm Chamber of Commerce, of which Ulf Franke has been the energetic Secretary General for many years, which address the financial and tax aspects of the arbitrator’s activities. Nevertheless, as Ulf Franke is interested in all aspects of the arbitration process, he will already have pondered about the general title and third part of this contribution—to what extent “guidelines” on the conduct of proceedings are indeed mere guidelines, which are a useful source of inspiration in the conduct of arbitration proceedings and do not restrict the participants’ freedom (IV). In conclusion, “creeping normalisation” to which true guidelines may also lead, will briefly be discussed (V).
II. HISTORICAL BACKGROUND: THE DEREGULATION OF ARBITRATION
For the first sixty years of the previous century, arbitrators conducted themselves like quasi-judges. On the European continent their arbitration proceedings very often imitated court proceedings; only when they were allowed to decide as “amiable compositeur” were they not bound by the “strict procedural rules, formalities, and time bars that had to be applied in the State courts.” The arbitrators could not, for instance, use other rules on evidence than the state courts and they examined witnesses as the State judges did.