SOFT LAW AND ARBITRAL PROCEDURE: A CONDITIONED BUT INESCAPABLE COUPLE
Originally from European International Arbitration Review (EIAR)
Over time, the arbitral community has grown exponentially; this can be seen in the proliferation of new arbitral institutions, professional associations, and study programs. In this vein, soft law making has grown exponentially as well. Definitions are always complicated, and the case of soft law is not different in this regard. It is hard to trace the origin of this term, let alone its current definition. However, it is easy to see how it is used today: the term soft law is in fact interpreted as a conglomerate that encompasses almost any non-binding group of rules.
As a general and undisputed principle, the arbitral procedure is governed by the rules selected by the parties. However, the parties rarely include more than a reference to the institutional rules, which in turn only have a few fundamental provisions. In this context, often the parties encounter procedural disagreements without a concrete solution at hand. This is when soft law is brought into the picture by counsel or even arbitrators. In these situations, many questions arise regarding the value, legitimacy, and impact of soft law.
While soft law may deal with procedural and substantive matters, this paper focuses on procedural soft law only. This paper does not analyze any particular instrument, but the general considerations of soft law in light of the current theory and practice of international arbitration. In order to do so, this paper is structured as follows. First, it tries to identify the (unclear) boundaries of soft law within this particular context. Second, it analyses the use of soft law, considering its current success and critics. Third, it proposes how to improve soft law making, in order to achieve solid soft law instruments. Fourth, it analyses whether arbitrators could rely on soft law in the absence of the parties’ consent. Finally, it reaches some concluding remarks. While there is no census of the size of the arbitral community, it is enough to consider the thousands of practitioners attending conferences, or the students attending study programs or participating in moot courts worldwide every year.