Soft law: the soft option?
I will be moderating a panel at the forthcoming conference on the Future of International Arbitration in London on 26th March. The panel discussion is titled: “Combating or Embracing Codification and ‘Soft Law”? Predictability vs Flexibility” and it’s going to be a great discussion with wonderful panellists, James Freeman, Patrizia Netal, Angeline Walsh and Nadja Jaisla. You can find more details of the conference here.
Preparing for the panel has made me think critically about the proliferation of guidelines in our field. The various published guidelines range from the semi-codification of arbitration proceedings through the IBA Rules on the Taking of Evidence to more ‘guidance-driven’ protocols such as the useful cadre of learning summarized in the Chartered Institute of Arbitrators’ Guidelines on various aspects of arbitration (link here as I always find them a challenge to locate). Of course we now also have the new entrant into the field, the Prague Rules on the Efficient Conduct of Proceedings in International Arbitration.
The Prague Rules are ambitious in that they largely attempt to address the entirety of the arbitration, as well as straying outside of the arbitral process into mediation/the sphere of settlement. It remains to be seen how the Prague Rules translate to larger complex cases as they seek to restrict disclosure, with parties told they should “avoid any form of document production, including e-discovery“.
The Prague Rules are intended to streamline the process and for the tribunal to “pro-actively manage the process from the start'“. I would suggest that, in this cost and time conscious day and age, it should be the base case for tribunals to be actively managing cases and if the tribunal is not, then questions should be asked as to why, regardless of whether reference is had to the Prague Rules or other soft law. I do concede that it is comforting as an arbitrator not to have to reinvent the wheel or wrestle with a complex question of procedure but instead to be able to reach for a guideline to give a sense of best practice. But I also wonder whether a tribunal is not properly carrying out its duty if, rather than tailoring the procedure to the dispute in front of it, it simply reaches for the Prague Rules or the IBA Rules and its tried and tested Procedural Order No.1. Isn’t that lazy arbitrating? Sometimes it seems to me that reliance on soft law may be the soft option, in that it may allow tribunals to dodge hard choices with regard to the efficient conduct of the process.
