Роль источников мягкого процессуального права в регулировании международного арбитража

Abstract

The contractual nature of international arbitration and the possibility of the disputing parties to regulate to a large extent the procedure for consideration of disputes have created conditions for the development and successful introduction into practice of a significant number of recommendatory documents, systematically summarizing advanced practices for resolving certain groups of issues arising within the arbitration process. Such documents, playing, as a rule, the role of auxiliary, optional sources of international arbitration and defined as rules, principles, protocols, recommendations, guidelines, and collectively referred to by the term: “soft law” and recently also “para-regulatory texts” (PRT), are prepared under the auspices of authoritative professional associations such as the International Law Association (ILA), the International Bar Association (IBA), the International Council for Commercial Arbitration (ICCA), etc., as well as leading centres of international arbitration. The article considers the relevant aspects of application of such documents in modern international arbitration, including various ways of referring to them in the course of proceedings, taking into account the statutory hierarchy of normative sources and other means of regulation of the arbitral procedure. The authors analyses the goals of developing soft procedural law documents: the need for national legislation and arbitration rules which would be predictable and consistent with common practices of gap-filling, and the intention to educate the professionals about the best practices.