Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

In the practice of international arbitration one encounters many (sometimes
conflicting) practices, habits, customs, norms, and expectations. Perhaps not
surprisingly, therefore, many discussions of international arbitration seek to bring
order to the analysis of particular problems by reference to the "developed" or
"universally recognized" view1 of this or that issue or what the rule is in "[m]ost
jurisdictions"2 without clearly explaining whose votes count in determining
whether the rule is "universally recognized" or what makes a view "developed."
To be sure, some of these practices, etc. have found expression in international
instruments, most notably the New York Convention3 and various domestic laws,
such as the English Arbitration Act.4 At least within the jurisdictions adopting
such instruments and laws, one may classify those practices as positive law.
Outside those jurisdictions, however, their authority must depend upon the extent
to which they reflect customary law. Other practices are embodied in the
pronouncements of non-state actors5 interested in international arbitration, and
their authority is more clearly a matter of customary, rather than positive, law.
Such pronouncements include the IBA Rules on the Taking of Evidence in
International Arbitration6 and the UNCITRAL Model Law on International
Commercial Arbitration.7 Various accounts have been given of these customary