Loukas A. Mistelis & Julian D. M. Lew
Kluwer Law International
The conference organizers set me the daunting task of exploring arbitration's “non-national instruments,” which is to say the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.
The growth of procedural soft law has accelerated during the past half-dozen years. The International Bar Association (IBA) has revised its rules on evidence and issued conflicts-of-interest guidelines. New American Arbitration Association ethics guidelines retreat from the longstanding AAA practice of partisan party-nominated arbitrators. UNCITRAL put out Notes on Organizing Arbitral Proceedings. And this past autumn the American College of Commercial Arbitrators debated a compendium of “Best Practices” for business arbitration.
In some cases, the compromise reached in such principles may be helpful, while less so in other instances. But in almost all cases, these guidelines will have far-reaching effects, notwithstanding that they are non-binding on their face. During heated procedural debates they will be cited faute de mieux, for lack of anything better. The IBA Guidelines on Conflicts of Interest – with their red, orange and green lists of illustrations indicating varying levels of arbitrator disqualification – have been contested precisely because they will in fact affect arbitrator nominations as they enter the canon of sacred writings cited when an arbitrator's independence is contested.
While the increase in such guidelines is beyond cavil, it is less clear whether the trend is a healthy one. Simply put, soft law serves as a constraint on arbitral autonomy. Any regulatory instrument will limit “flexibility” and “discretion” – those hallowed words that can trigger genuflection in even the most impious of arbitrators.
In a recent issue of Cahiers de l'arbitrage, the eminent Paris avocat Serge Lazareff likened procedural soft law to a loathsome skin disease, using the provocatively pejorative label le prurit réglementaire (“regulatory pruritus”). Serge began with a hypothetical conversation (at least I hope it was hypothetical) in which a lawyer at a hearing asks the Tribunal chairman for a pause in the testimony so he can relieve himself. “Monsieur le Président, puis-je aller aux toilettes?” Mr. Chairman, can I visit to the WC? The response is a resounding negative (“Non, mon cher Maître”) bolstered by citation to provisions of the Code of Conduct for Arbitral Hearings that stipulates precise numbers of bathroom breaks in function of the length of hearings.
The Procedural Soft Law of International Arbitration
Pervasive Problems in International Arbitration
(Loukas A. Mistelis & Julian D. M. Lew ed.,
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2290