What Remains to Be Done? Future Para-regulatory Text Projects - Chapter 08 - Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

Author(s):

Phillip Landolt

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30 pages

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Published:

October, 2015

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Originally from Sense and Non-sense of Guidelines, Rules and Other Para-regulatory Texts in International Arbitration - ASA Special Series No. 37

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1. INTRODUCTION

The answer to the question “What remains to be done in regard to

future para-regulatory text projects” plainly presupposes an

understanding of the term “para-regulatory texts”. It also presupposes

that para-regulatory texts can in principle deliver benefits which

outweigh any detriment they bring. It would otherwise remain only to

call for the abolishment of existing para-regulatory texts in

international arbitration.

The literature does not seem to have paid much attention to

defining the concept of para-regulatory texts, and to articulating the

functional basis of the concept so defined. By consequence, this

chapter will begin by examining what para-regulatory texts may be as

a coherent legal concept. In this chapter it will be contended that one

needs to understand the concept of “para-regulatory texts” in

international arbitration upon an analogy to the term as used in its

original context, which is public law, especially international but also

domestic.

Situating para-regulatory texts thus will allow an identification of

the burdens and benefits which they entail, and will facilitate

assessment of para-regulatory texts. The conclusion here will be that

there are some burdens, but these may be managed, and they are at all

events outweighed by the benefits. Accordingly, it will be

recommended that the first thing that remains to be done is to ensure

that the detrimental elements of any para-regulatory texts are

minimised. There will then be an assessment of existing pararegulatory

texts upon the qualitative criteria identified.

Lastly, principles to determine relative priority for pararegulatory

texts on new subject areas will be elucidated, and in

application of these principles a number of new subject areas will be

suggested.

2. THE CONCEPT OF PARA-REGULATORY TEXTS IN THEIR

ORIGINAL CONTEXT

The native soil of the concept of para-regulatory texts is public

municipal and international law.1 In this context it refers to texts

without coercive legal effectiveness or with imperfect legal

effectiveness in their origin.2,3 The principal cause of such imperfect

legal effectiveness is that the authority which promulgated the pararegulatory

text did not intend for it to have full legal effectiveness. A

second cause is that the body which promulgated it did not itself have

full power to create a text of full legal effectiveness. A third cause is

that the text itself is somehow not capable of carrying full legal

effectiveness, because it requires something that it cannot objectively

achieve, because there is a problem discerning the content of the text,

or because it confers such broad discretion upon the implementing

authorities that it is not the text itself which is legally effective, but rather

the decisions of the implementing authority. Lastly, the concept may

include situations where imperfect legal effectiveness stems from

properties not inherent in the promulgating body or in the text itself, but

for example from problems with the implementing authorities, who may
be unwilling or incapable of ensuring full legal effectiveness.4