Soft law in international law

The increase in the number of international arbitrations, the value of disputes and the costs involved in the arbitration process have increased the pressure on the successful settlement of disputes. The arbitrators face the threat of guerrilla tactics or cancellation of the arbitral award due to the violation of due process right. However, in recent years, the voice of criticism can be felt from the heart and can be alert to over regulation and its judicialization. In the next few pages, we study the influence of soft rules on the validity of international commercial arbitration. First, the author deals with the right of fair trial and the discretion of arbitrators within the framework of the concept of soft law, and then determines the binding force of the soft law. The purpose of this paper is to answer the following questions: whether soft law is still welcome to regulate the arbitration procedure, or whether this constitutes a threat to the discretion of arbitrators and arbitration itself.

The application of soft law in international arbitration is more and more important. The main reason is that the autonomy of the parties in the arbitration countries tends to regulate the arbitration law in a limited way. In addition to the rule-making by legislators, this creates a new market for participants. The rules drafted by these private participants are substantive or procedural. One of the most mentioned substantive soft laws is the UNIDROIT principle of international commercial contracts (UNIDROIT principle). When the arbitral tribunal is in the stage of dispute settlement (i.e. when examining the case), it will refer to the principles of the Institute for the unification of private law. However, arbitration is a dispute settlement mechanism, which involves a large number of procedural issues, and soft law aimed at regulating such procedural matters and specific arbitration will be the main focus of this newsletter.

In practice, there is no unified standard definition of soft law. However, the characteristics of procedural soft law can be proposed, which is also called quasi rule text (PRT) 1 in arbitration. The main purpose of these rules is to assist and guide practitioners, especially arbitrators, who lack laws and regulations in arbitration.

Soft law can appear as guidelines, rules, codes, suggestions, guidelines, notes, etc. The titles of these norms mainly depend on the position of the drafters and how they want to understand the content of the rules. They can also be regarded as legal texts covering substantive legal aspects. As a soft law, in fact, if its scope of application is not directly stipulated in the contract, it may contain aspects similar to PRT. These legal texts are not PRT, but binding clauses, such as ICC INCOTERMS, UNIDROIT international contract principles and European contract law principles.

Arbitration related institutions (such as the International Bar Association (IBA)) codify most of the procedural soft law norms mentioned in arbitration into law IBA is one of the institutions that draft a large number of PRTs The most popular and widely used PRT issued by IBA is the IBA rules for evidence collection in International Arbitration (IBA guidelines for evidence collection) and the IBA guidelines for conflict of interest in international arbitration.

These norms are not considered part of state domestic law and relate to issues not covered by arbitration rules. This is one of the reasons for the application of the ICC arbitration rules (ICC rules), in which the parties and arbitrators rely on the IBA evidence guide in the absence of guidance from ICC rules. In other words, these procedural specifications are complementary The foreword of the IBA evidence guide also states that these rules are intended to be used in conjunction with and with the institutional, provisional or other rules or procedures governing international arbitration.

One of the biggest differences between soft law and hard law is its non binding force. Most of the soft legal norms are non mandatory and non binding, so they do not have sufficient legal effect. This is because the drafting authority lacks such legal capacity, or believes that the rules are not sufficiently effective, or the enforcement authority is not willing to ensure adequate legal capacity.

Soft law can also be used as a tool for the uniform interpretation of the rules of arbitration institutions, which are usually drafted without any connection with the location of the arbitration institutions, because the arbitration area is usually determined by the parties, so its nature should be international. The interpretation of rules should be based on international practices, especially those given by soft law. In addition, it is customary for the rules of the arbitral body to refer to the right to a fair trial without any determination of the governing law. [II] as recommended by some competent bodies, the New York Convention should be interpreted together with international procedural standards, rather than through national laws.

PRT may state its nature and application in its preamble or foreword. In the foreword of the IBA evidence guide, it is pointed out that the parties and the arbitral tribunal may adopt the IBA evidence rules in whole or in part at the beginning of the arbitration or at any time thereafter. They can also change them or use them as a guide for developing their own procedures. Article 1, paragraph 1, of the IBA guide to evidence further provides that the parties or the arbitral tribunal may determine its application. In cases where the parties decide to have jurisdiction over their proceedings, the arbitral tribunal must apply it.

PRT may state its nature and application in its preamble or foreword. In the foreword of the IBA evidence guide, it is pointed out that the parties and the arbitral tribunal may adopt the IBA evidence rules in whole or in part at the beginning of the arbitration or at any time thereafter. They can also change them or use them as a guide for developing their own procedures. Article 1, paragraph 1, of the IBA guide to evidence further provides that the parties or the arbitral tribunal may determine its application. In cases where the parties decide to have jurisdiction over their proceedings, the arbitral tribunal must apply it.

PRT does not have the same powers as arbitration law. It will not give immediate effect to the powers of state courts. [iv] in order for PRT to have power, there should be a factor to give that power. The undisputed authority will be the agreement of the parties. It can be said that when the parties decide to apply PRT in their arbitration agreement, this will be binding on the arbitral tribunal, procedural law and applicable contract law.

The application of PRT will affect state courts, arbitrators and parties. It should be noted that all these actors must comply with the minimum standards set by the arbitral tribunal. They can interpret the arbitration law under the guidance of PRT, but they are not bound by it.

In practice, the IBA evidence guide has a unique position in other PRTs, and the application of these rules will help the work of the arbitral tribunal; it will provide the parties with some guarantees that the tribunal will respect the due process rights of the parties. It should also be borne in mind that arbitrators and parties should review the need for each case and then decide to apply for PRT, as in some smaller cases with domestic characteristics, the imposition of complex procedural rules can be burdensome.

However, the impact of this IBA evidence guide on state courts is weak. Some scholars explained that the procedural issue of evidence appeared in state courts within the scope of due process. Whether the arbitral tribunal applies the IBA evidence guide will not be regarded as violating the basic principles of procedure

In practice, it is questioned whether any arbitrator has the right to apply soft law at his discretion without the consent of the parties. This may lead to an argument against the enforceability of the award, or the parties may claim a fair trial.

Another important question about PRT is whether the decision can be challenged on the basis of PRT. In other words, a party can challenge the award by claiming that the arbitral tribunal violated the PRT. For each PRT, the answer to this question will be different.

In Switzerland, when examining the independence and impartiality of arbitrators, the Swiss federal court usually refers to the IBA’s guidelines on conflicts of interest in international arbitration. However, non-compliance with other PRTs is hardly a matter of abolition.

The increase in the number of international arbitrations, the value of disputes and the costs involved in the arbitration process have increased the pressure on the successful settlement of disputes. The arbitrators face the threat of guerrilla tactics or cancellation of the arbitral award due to the violation of due process right. However, in recent years, the voice of criticism can be felt from the heart and can be alert to over regulation and its judicialization. Impromptu

In international litigation, transnational soft law often finds expression in the rules, norms and norms of professional associations, so as to supplement the hard law of national laws and court decisions. In order to commemorate the experience of arbitrators or lawyers, such standards have a certain degree of circularity, because the relevant norms come from cross-border arbitration and also apply to cross-border arbitration. The nature and limitation of soft law are not always clearly presented. In general, litigation agreements do not provide the standard for contentious questions, and the answers to these questions go beyond the usual practice. In this case, the integrity of the process requires that scholars and practitioners who claim to summarize the arbitration standards maintain a humble attitude.

Procedural soft law or PRT is regarded as an important resource of international arbitration participants and should be accepted by the arbitration community. Even though people have doubts about the legal effect and legality of PRT, its scope of application, and the enforceability and annulment of the award, more and more arbitrators are using procedural soft law to perform their duties of fair and just procedure. Their adoption also helps the parties to understand the framework of their proceedings and avoid unexpected procedural uncertainty.

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