Soft Law in the Organization and General Conduct of Commercial Arbitration Proceedings - Chapter 2 - Soft Law in International Arbitration - Second Edition

THOMAS J. STIPANOWICH holds the William H. Webster Chair in Dispute Resolution and is Professor of Law at Pepperdine University School of Law, as well as the Academic Director of the Straus Institute (ranked first by peers in the U.S. News ratings the last nine years in a row). He is the recipient of the D'Alemberte-Raven Award, the American Bar Association (ABA) Dispute Resolution Section's highest honor, for contributions to the field and other honors. He is an experienced commercial arbitrator and mediator with emphasis on large and complex cases in the United States and internationally. He has received appointments through the AAA, JAMS, the International Centre for Dispute Resolution (ICDR), the International Chamber of Commerce (ICC) and the CPR Institute. He has trained arbitrators or mediators for the AAA, CPR, the Chartered Institute of Arbitrators, and the Straus Institute; has facilitated internal and inter-organizational problem-solving and consensus-building efforts; and has helped develop corporate and institutional programs for avoiding or resolving disputes.

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Originally from Soft Law in International Arbitration, Second Edition

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Introduction

Soft law 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 over-formalization of a process that was meant to be flexible and responsive to the needs of individual cases. As explained in the following pages, however, soft law guidelines usually function as a compass – a non-compulsory touchstone for arbitrators and other stakeholders – rather than a straitjacket, although sometimes they influence contract language or modifications to arbitration rules and procedures.