Journal Name: European International Arbitration Review

Volume Number: 7

Issue Number: 2

Abstract:

As we will see, soft law in arbitration often promotes uniformity. In fact, even when the goal of a soft law is not uniformity and there is a diversity of soft laws available (the many arbitration rules for example) thus offering a choice of soft laws, the pressures of adopting what the arbitration legal community perceives as best for arbitration, or what is the latest fad, will often lead to uniformity of the soft laws – the rules of arbitration now increasingly look the same, offering in fact little diversity and almost no real choice.
This article will argue that if uniformity is in fact desirable in some respects (lex arbitri) and soft law can be a useful instrument to promote uniformity (UNCITRAL Model Law on International Commercial Arbitration, for example), in other respects (procedure and evidence) the rules should not be uniform and soft law may better serve the arbitration community and its clients by promoting diversity rather than uniformity.
This article will first define soft law particularly in the context of international arbitration and list the soft law instruments that will be studied (part 2). It will then look at specific soft law instruments and determine whether their goal is to promote uniformity or diversity (choice), whether that goal is appropriate and whether it has been achieved. The article will then look at the specific instruments in turn: the Model Law (ML) (part 3), the rules of arbitration (part 4) and the rules of evidence (part 5). A conclusion follows (part 6).