The Transnational Procedural Rules for Arbitration and the Risks of Overregulation and Bureaucratization

Abstract

Arbitration is widely recognised as an autonomous legal order. As such, it has its own substantial and procedural rules, which are also transnational in nature. With regard to the procedural rules, a set of transnational procedural rules of soft law has emerged, which are meant to be applicable to the arbitration proceedings with the only limit of the mandatory application of the public order provisions of the lex arbitri. This set of procedural rules has been sometimes referred to as the lex mercatoria processualis. It consists of the rules of procedure of the lex arbitri, the arbitration rules of the various arbitration institutions and a number of guidelines, codes of conduct and similar productions of soft law which are being issued to an increasing extent with the stated intent of providing some guidance to arbitrators in the exercise of their discretion as to the identification of the applicable procedural rules. With reference to the last set of procedural rules, there appears to be a serious risk that the international arbitration community has placed itself on a slippery slope toward overregulation and unnecessary bureaucratisation. Already the well known 2010 IBA Rules on the Taking of Evidence in International Arbitration, though useful under many respects, are often criticized with respect to their rules on document production which seem to be predicated on the false assumption that a document production phase is a must in international arbitration. However, the concerns about overregulation and bureaucratization have been recently reinforced as a consequence of the issuance of the 2013 IBA Guidelines on Party Representation in International Arbitration. They cover a variety of critical issues, suggesting, however, in most cases, rules that are either unnecessary or unduly limiting the discretionary powers of the arbitrators. For example, the Guidelines concerning the remedies available to arbitrators in case of misconduct by the parties or their counsel do not add anything to the arsenal of measures previously available to the arbitrators. They, however, appear to suggest that giving advance notice to the parties and a right to be heard are necessary prerequisites for the adoption of such measures - an obligation that arbitrators do not have under current standards.