Originally from Soft Law in International Arbitration, Second Edition

PREVIEW PAGE

1. INTRODUCTION

1. Background to the present Code

The present Code of Best Practice (“CBP”) is intended to update and complete the Code of Best Arbitration Practices published by the Club Español del Arbitraje [Spanish Arbitration Club] (“CEA”) in 2005 (the “2005 Code”), which addressed this topic over a decade ago. There is however a significant difference: the 2005 Code was aimed exclusively at arbitral institutions, while the present CBP contains recommendations not only for arbitral institutions, but for all professionals participating in the arbitration process: arbitrators, lawyers, experts and funders.

2. Rationale

The 2005 Code had undeniably positive effects. It constituted a step forward. But new situations and challenges have arisen which could not have been foreseen in 2005. Furthermore, international experience shows that arbitration users desire that all participants in the arbitration process abide by increasingly demanding standards of independence, impartiality, transparency and professionalism.  Mindful of these new demands, the CBP seeks to raise the standards of conduct even further, in order to definitively consolidate society’s confidence in arbitration.

3. Drafting Procedure

The CBP is divided into six sections and four annexes:

Section One: Arbitral Institutions

Section Two: Arbitration Process

•  Annex A: CEA Model Arbitration Rules

•  Annex B: Model Arbitration Clause

 Section Three: Duties of the Arbitrators

•  Annex C: Model for Arbitrator Acceptance

Section Four: Duties of Lawyers

Section Five: Duties of Experts

•  Annex D: Model for Expert Acceptance

Section Six: Duties in Relation to Funding
 

Each section was drafted by a subcommittee which answered to the Committee.

The Committee was presided by Juan Fernández-Armesto and Carlos de los Santos. Secretarial duties were performed by Krystle M. Baptista.

Each subcommittee defined its own work methodology, including the designation of a spokesperson and the appointment of a secretary, and involved as many members and advisors as deemed appropriate. The subcommittees met on repeated occasions, and after finalising their work, presented their proposals to the Plenary Committee for consolidation and harmonisation. Before its final approval, the draft CBP was subject to a consultation process which involved all Club members, arbitration associations and arbitral institutions.

4. Nature of the Rules

The CBP is a set of “soft rules”: a compilation of the recommendations which the CEA offers to the entire law arbitration community. It sets forth the rules which, in the Club’s opinion, should be followed by arbitral institutions, arbitrators, lawyers, experts and funders. However, the rules are not binding unless parties decide otherwise in the arbitration agreement or in the arbitral proceedings.