Procedural Default Rules Revisited

PROCEDURAL DEFAULT RULES REVISITED*

To enhance fairness in arbitral proceedings, the 2002 Freshfields Lecture suggested that institutional rules might provide greater specificity in case management protocols, subject always to the parties’ agreement otherwise. The modest thesis of those remarks was that litigants often feel cheated when rules applicable to matters such as document production and evidence are adopted only after the birth of a particular quarrel.

The problem with default rules, of course, is that they limit arbitrator discretion, flexibility and freedom, a trinity that still triggers genuflection at arbitration conferences. At dinner following the lecture, several friends made clear that they greeted its proposal with the same enthusiasm normally reserved for ants at a Sunday school picnic.

Not all reactions were negative, however. Several lawyers spoke of clients who found it frustratingly unsatisfactory that detective work about a presiding arbitrator should remain the principal gauge for predicting procedural rulings. Some letters told stories of “imperial arbitrators” whose disregard of due process was facilitated by the absence of fixed procedural rules. One in-house counsel said that his company had come to consider arbitration an unacceptable lottery of unpredictable results.¹

Since the lecture’s publication, three factors have emerged as vital to discussions about the specific content of arbitration rules: (i) use of professional guidelines; (ii) resort to national law to fill procedural gaps; and (iii) increased awareness of the need for ground rules at the start of arbitration. Each concern provides an intellectual wrinkle to the analysis of how to achieve optimum counterpoise between flexibility and predictability.²

A. Professional Guidelines: The Soft Law of Arbitration

Increasingly, arbitral proceedings see the influence of professional guidelines that address case management questions such as evidence, ethics and organization of proceedings. The International Bar Association has issued conflicts-of-interest guidelines³ and revised its rules on evidence.⁴ The American Arbitration Association modified its code of ethics for arbitrators.⁵