Procedural Soft Law in International Arbitration: Resolving the Tension between Flexibility and Predictability
Originally from European International Arbitration Review
The present contribution examines the ever-increasing use of soft law to determine procedure in international arbitration, and whether it furthers or impedes the conventional values of arbitration. At first blush, the increasing prevalence and popularity of soft law challenge the traditional underpinnings of arbitration as an alternative to dispute resolution. As Gary Born opines, “[i]n theory, a party trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration”. The underlying assumption is therefore that parties choose arbitration precisely for the flexibility and autonomy it affords. These values, however, are being challenged by the rapid emergence of soft law instruments and guidelines seeking to instil some certainty and predictability to the arbitral process. This paper seeks to provide some pause to the debate on procedural soft law, as well as posit a heuristic framework for evaluating the merits of soft law.
Section I discusses the emergence and relevance of procedural soft law in international arbitration. It will also briefly consider the debate on soft law and how soft law affects the traditional values. Section II proposes a new teleological lens and framework for analysing procedural soft law. Section III applies this framework to three specific areas – the taking of evidence, the right to an independent and impartial tribunal, and the regulation of counsel ethics – where the International Bar Association (IBA) has promulgated soft law instruments. It is important to note at this juncture that distinguishing between the various soft law instruments is crucial to an informed analysis, since the plurality of soft law may lead to unification and harmony in one area but disharmony and stratification in another. The impact of these soft law instruments in their respective fields is accordingly discussed, rather than simply taking a broad-brush approach to all soft law. Finally, Section IV concludes by arguing that the proliferation of soft law instruments, at least in respect of arbitral procedure and if kept within certain parameters going forward, has been and will continue to be a boon rather than a bane for international arbitration.