THE PROCEDURAL SOFT LAW OF INTERNATIONAL ARBITRATION*
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 evidence1 and issued conflicts-of-interest guidelines.2 New American Arbitration Association ethics guidelines retreat from the longstanding AAA practice of partisan party-nominated arbitrators.3 UNCITRAL put out Notes on Organizing Arbitral Proceedings.4 And this past autumn the American College of Commercial Arbitrators debated a compendium of “Best Practices” for business arbitration.5
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.6
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.
There is certainly food for thought in our Gallic colleague’s whimsical scenario attacking excessive procedural guidelines. As Talleyrand reportedly observed, anything excessive becomes insignificant: “tout ce qui est excessif devient insignificant”. Yet a more nuanced view might see procedural soft law as enhancing arbitration’s integrity. Modern arbitration is either blessed or plagued, depending on perspective, with a lack of fixed standards related to how arbitrators conduct proceedings. Little “hard law” exists with respect to how the specifics of how an arbitral tribunal should gather evidence and hear argument in its effort to determine the facts, interpret the contract, and apply the law governing the parties’ dispute.
As in other areas, the devil is in the detail. How should the case in chief be presented: written statement? Oral testimony? Both written and oral? What objections justify excluding an exhibit? What degree of relevance justifies an order to produce documents? What sanctions should be imposed for refusal to comply with a discovery order? Battlegrounds are plentiful: the process for proving applicable law; time allocation among the litigants; issue preclusion; avoiding “trial by ambush;” fixing the proper role for legal authority; and even what to do if an arbitrator is abducted.
In arbitration, fairness requires some measure of efficiency, since justice too long delayed becomes justice denied. Likewise, without fairness an arbitral proceeding would hardly be efficient, since it would fail to deliver a key element of the desired product: a sense that justice had been respected. A chef who aimed to provide fine dining might fail either by making customers wait too long or by serving junk food instead of a gourmet meal.7
Discussion of these competing goals brings to mind a conversation many years ago with the secretary general of a prominent arbitral institution. He was being interviewed following his retirement after a long career during which his organization had seen a marked increase in caseload and prestige. When asked what he considered to be his most important achievement, the eminent elder statesman replied without a moment’s hesitation: “Why, the greatest success was taking a process that had been quick and cheap and turning it into one that is now long and expensive. Enfin! At last we are respected.”
The point, of course, was that business managers who complain about too much legal procedure also object to too little. Procedural formality is often another term for due process.
The potential benefit of procedural soft law is that it can enhance the type of fairness business managers expect in dispute resolution, helping to strike the right equilibrium between fairness and efficiency. Arbitration is neither trial by combat nor a random process such as consulting the entrails of a chicken. Rather, arbitration implies respect for a bundle of rights often called due process, which the British sometimes label as natural justice. Once summarized as “the duty to hear before condemning,”8 due process lies at the core of what litigants seek in both arbitration and litigation.
Like other elastic notions such as justice and equity, the term “due process” has no sacramental value in itself, but takes meaning from usage. Since one person’s delay is often another’s due process, notions of arbitral fairness evolve as they are incarnated into flesh and blood responses to specific problems, whose merit often depends on culturally conditioned baseline expectations. A lawyer from New York might say that fundamental fairness requires the respondent to produce certain documents even if adverse to its defense, while a lawyer from Paris or Geneva, used to a quite different legal system, would reply that the claimant should have thought about its proof before filing the claim.