Soft law1 plays an increasingly prominent role in evolving standards for organizing and conducting commercial arbitration proceedings. In recent years, a wide variety of non-binding guidelines have emerged out of international discourse regarding process management and more particular concerns about cost, delay and inefficiency in arbitration. These standards have influenced the activities of business clients and counsel, arbitrators, arbitral institutions and even courts. Collectively, these guidelines reflect a growing recognition that deliberate and proactive effort by business users, counsel, arbitrators and provider institutions is critical to making the most of arbitration and counteracting recent trends.
The Soft law guidelines discussed below were inspired in whole or in part by concerns about how arbitrators exercise the broad discretion they are accorded under leading arbitration rules to “flesh out” procedures and manage the process. More recently there have been growing concerns about the so-called “judicialization” of commercial arbitration, and the need for guidelines designed to promote more efficient resolution of conflict. At the same time, there are those who tend to view the proliferation of guidelines as leading to over-regulation and overformalization of a process that was meant to be flexible and responsive to the needs of individual cases.