Soft Law in International Arbitration

Author(s):

Lawrence W. Newman

Michael J. Radine

ISBN:

978-1-937518-43-1

Page Count:

470 pages

Published:

April, 2014

In recent years, a growing body of provisions called “protocols,” “guidelines,” “checklists” or even “rules” has emerged in international arbitration. Unlike national or international law, or institutional arbitral rules, these provisions are not “mandatory” for arbitration participants. They range from provisions that can be incorporated into the parties’ agreement to arbitrate to suggestions as to the best practices that arbitrators and other arbitration participants may choose to follow. These materials are often collectively referred to as “soft law.”

Soft Law in International Arbitration provides a guide to what the editors consider to be the most useful of such materials. The book organizes these materials into five categories, each introduced with commentary by a prominent member of the international arbitration community. Thus, the eighteen documents contained in this book can be regarded as helping to fill in the spaces that substantive law and arbitration rules have intentionally left blank.

Soft Law in International Arbitration is an indispensable commentary for practitioners and academics alike.

Preface

About the Authors

Part I
Drafting Arbitration Clauses Before and After a Dispute
Paul Friedland and Damien Nyer

1. AAA Drafting Dispute Resolution Clauses: A Practical Guide

2. IBA Guidelines for Drafting International Arbitration Clauses

Part II

Soft Law in the Organization and General Conduct of Commercial Arbitration Proceedings

Thomas J. Stipanowich

1. College of Commercial Arbitrators Protocols for Expeditious, Cost-Effective Commercial Arbitration

2. ICC Techniques for Controlling Time and Costs in Arbitration

3. CPR Guidelines for Early Disposition of Issues in Arbitral Proceedings

4. UNCITRAL Notes on Organizing Arbitral Proceedings

5. ICC Note on the Appointment, Duties, and Remuneration of Administrative Secretaries

Part III

Ethics in International Arbitration: Soft Law Guidance for Arbitrators and Party Representatives

Edna Sussman

1. IBA Guidelines on Conflicts of Interest in International Arbitration

2. International Bar Association Rules of Ethics for International Arbitrators

3. ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes

4. IBA Guidelines on Party Representation in International Arbitration

Part IV

Disclosure of Documents and Presentation of Evidence in International Arbitration

Lawrence W. Newman

1. CPR Protocol on Disclosure of Documents and Presentation of Witnesses in Commercial Arbitration

2. ICDR Guidelines for Arbitrators Concerning Exchanges of Information

3. IBA Rules on the Taking of Evidence in International Arbitration

4. ICC Techniques for Managing Electronic Document Production When it Is Permitted or Required in International Arbitration

Part V

Soft Law Guidance on Drafting Awards in International Arbitration

Michael J. Radine

1. CPR Guidelines for Arbitrators Conducting Complex Arbitrations

2. ICC Issues Checklist for Arbitrators Drafting Awards

3. CPR Protocol on Determination of Damages in Arbitration

LAWRENCE W. NEWMAN

Editor and Contributor

Lawrence W. Newman is Of Counsel in the Litigation Department of

Baker & McKenzie LLP in New York, where his practice is focused on

international litigation and arbitration. He was the Chairman of the

National Committee of Claimants (USICC) in arbitrations against Iran in

the Iran-U.S. Claims Tribunal and has represented clients in numerous

commercial and investment arbitrations before various tribunals around

the world. He was, from 2003 to 2007, the Chairman of the International

Disputes Committee of the New York City Bar and was, from 2008 to

2012, the Chairman of the Arbitration Committee of the International

Centre for the Prevention of Resolution and Conflicts (CPR). He is

currently Chairman of the Arbitration Subcommittee of the Chartered

Institute of Arbitrators. Mr. Newman has been, since 2010, the Chairman

and convening member of the International Arbitration Club of New

York. He has been responsible since 1982 for the "International

Litigation" column of the New York Law Journal and is the editor and

author of numerous books and articles on litigation and arbitration. He is

a Fellow of the College of Commercial Arbitrators, a Fellow of the

Chartered Institute of Arbitrators, an elected member of the American

Law Institute and a member of various other bar and international

arbitration organizations.

MICHAEL J. RADINE

Editor and Contributor

Michael J. Radine is an associate in the New York office of Gibson,

Dunn & Crutcher LLP, where he specializes in international arbitration

and litigation. He represents clients in a variety of arbitration formats and

advises transactional clients on drafting arbitration clauses. His clients

include major energy, banking and mining concerns. He is a frequent

contributor to publications on international arbitration and securities.

Mr. Radine is a graduate of Columbia University School of Law,

University of Chicago, and Washington University in St. Louis. At

Columbia, Mr. Radine was Managing Editor of the Journal of

Transnational Law and a Teaching Fellow.

PAUL FRIEDLAND

Contributor

Paul Friedland is a partner in White & Case LLP's New York office

and global head (since 2002) of the firm's International Arbitration

Practice Group, a group which includes 150 lawyers. Friedland has served

as arbitrator or counsel in numerous international arbitrations, is repeatedly

ranked among the world's leading arbitration practitioners, and holds or

has held leadership positions at major arbitration institutions, including the

American Arbitration Association (AAA) (as Director, Executive

Committee member and Chair of the Law Committee), the London Court

of International Arbitration (LCIA) (as Court member from 2005 to 2010)

and the International Bar Association (IBA) (as Senior Vice Chair of the

Arbitration Committee). He chaired the IBA's taskforce that authored

the IBA Guidelines for Drafting International Arbitration Clauses.

DAMIEN NYER

Contributor

Damien Nyer is a senior associate in White & Case's international

arbitration practice, based in New York. He has represented and advised

sovereign and private clients in multiple foreign investment, infrastructure,

construction, mining and insurance disputes. He also regularly advises on

the drafting of dispute resolution clauses for complex international

transactions and was the Secretary of the International Bar Association's

taskforce that authored the IBA Guidelines for Drafting International

Arbitration Clauses.

THOMAS J. STIPANOWICH

Contributor

Thomas Stipanowich holds the William H. Webster Chair in Dispute

Resolution and is Professor of Law at Pepperdine University School of

Law, as well as the Academic Director of the Straus Institute (ranked

first by peers in the U.S. News ratings the last nine years in a row). He is

the recipient of the D'Alemberte-Raven Award, the American Bar

Association (ABA) Dispute Resolution Section's highest honor, for

contributions to the field and other honors. He co-authored the much

cited five-volume FEDERAL ARBITRATION LAW (Best New Legal Book,

Association of American Publishers), COMMERCIAL ARBITRATION AT

ITS BEST (2001), and RESOLVING DISPUTES: THEORY, PRACTICE, AND

LAW (2d ed. 2010). He served as Editor-in-Chief of the COLLEGE OF

COMMERCIAL ARBITRATORS PROTOCOLS FOR EXPEDITIOUS, COSTEFFECTIVE

COMMERCIAL ARBITRATION (2010), which received the 2010

Practical Achievement Award from the CPR Institute and the 2011

Lawyer as Problem Solver Award from the ABA Section on Dispute

Resolution. He twice received the CPR Best Professional Article award,

most recently (2010) for "Arbitration: The 'New Litigation'" and

"Arbitration and Choice."

He is currently an Advisor for the ALI's RESTATEMENT OF

AMERICAN LAW OF INTERNATIONAL ARBITRATION and is a member of

the Academic Counsel of the Institute for Transnational Arbitration. He

is an experienced commercial arbitrator and mediator with emphasis on

large and complex cases in the U.S. and internationally. He has received

appointments through the AAA, JAMS, the International Centre for

Dispute Resolution (ICDR), the International Chamber of Commerce

(ICC) and the CPR Institute. He has trained arbitrators or mediators for

the AAA, CPR, the Chartered Institute of Arbitrators and the Straus

Institute; has facilitated internal and inter-organizational problem-solving

and consensus-building efforts; and has helped develop corporate and

institutional programs for avoiding or resolving disputes. In the fall of

2010, he was Scholar-in-Residence at the Park Lane (London) office of

WilmerHale, which specializes in international commercial arbitration.

Mr. Stipanowich came to Pepperdine in 2006 after serving as the

President and CEO of CPR, a New York-based nonprofit think tank,

before which he enjoyed a long career as a chaired law professor and

attorney. He may be the only individual who has been actively involved

in the development of uniform laws as well as all of the leading

providers' arbitration rules and ethical standards. He was academic

advisor for revisions to the Uniform Arbitration Act and the Uniform

Mediation Act, and chief drafter of the Consumer Due Process Protocol

(1997) governing consumer ADR programs, which became the basis of

the AAA's consumer arbitration procedures. He served on the Board of

Directors of the AAA, and was the first AAA International Visiting

Scholar (2000). He also served as Public Member and, later, Chair of the

Securities Industry Conference on Arbitration (SICA). He was actively

involved in the revision of the Code of Ethics for Arbitrators in

Commercial Disputes. He holds an AV Rating from Martindale-Hubbell.

EDNA SUSSMAN

Contributor

Edna Sussman, esussman@sussmanadr.com, is a full time

independent arbitrator and mediator and is the Distinguished ADR

Practitioner in Residence at Fordham University School of Law.

Formerly a litigation partner at the law firm of White & Case LLP, Ms.

Sussman serves on many institutional arbitration panels in jurisdictions

around the world and has served as an arbitrator in over one hundred

complex commercial disputes under various institutional rules.

Ms. Sussman is the founding Vice-Chair of the New York

International Arbitration Center and serves on the Board and the

Executive Committee of the AAA and the Board and Executive

Committee of the College of Commercial Arbitrators. She is a fellow of

the Chartered Institute of Arbitrators and certified by the International

Mediation Institute. Ms. Sussman is a former Chair of the Dispute

Resolution Section of the New York State Bar Association and serves as

co-editor-in-chief of the New York Dispute Resolution Lawyer. She was

formerly co-Chair of the Arbitration Committees of the ABA's Section

of International Law and Section of Dispute Resolution and served as the

Chair of the Renewable Energy Committee and the Alternative Dispute

Resolution Committee of the AAA's Section of Environment Energy and

Resources. Ms. Sussman served as the Chair of the New York City Bar

Association's Energy Committee and as the Chair of the Alternative

Dispute Resolution Committee of the Energy Bar Association. A

graduate of Barnard College 1970, and Columbia Law School 1973, Ms.

Sussman has lectured and published widely on arbitration, mediation,

energy and environmental issues.

"A valuable and timely compilation of international arbitration guidelines and protocols, with commentary by distinguished authors; a required reference for all international arbitration practitioners and scholars."
--Gary Born

"The role of soft law in international arbitration practice has increased tremendously in recent years. This volume comes as a most welcome collection of, and commentary on, all the relevant soft law texts."
--Gabrielle Kaufmann-Kohler

"This is a timely publication and is a valuable compendium of materials which enhance a wider understanding, particularly within the wide diversity of participants, of contemporary international arbitration practice. Of particular importance are the introductions to the thematically-arranged sections. Accessibility to information about practice is a key way for international arbitration to grow, and this publication is an important aspect of that laudable aim."
--Klaus Reichert

"Soft Law in International Arbitration is a very timely and useful contribution to the literature of the field. Soft law, which has emerged in an increasing pace over the past two-three decades, comprises a variety of guidelines, protocols, notes, rules etc. This book not only compile but also analyse and comment on some of the most important documents of this wealth of material. It is sure to become a very useful handbook for everybody involved in international arbitration."
--Ulf Franke

"Just like the increase in the number of commercial and investment cases, so has the number of guidelines to the international arbitral procedure run wild. The Newman and Radine book dissects the essentials in this world of abundance and works as a valuable reference for the experienced professional and as a valuable guide for the fresh arrival."
--Sigvard Jarvin

"International arbitration has become increasingly complex and involves many more lawyers than it had previously. This means there has been a real need for guidance to ensure common understandings of the baseline principles and practices by all participants in an arbitration. Soft law has developed to meet this need. But soft law has developed through ad hoc private initiatives. What has been lacking to date has been an authoritative selection of the most significant expressions of the soft law phenomenon, and their organization into a single useful volume. This volume admirably meets this need, and provides the added bonus of the commentaries of expert practitioners."
--Bernardo M. Cremades

"The new compendium is a one-stop shop for arbitral soft-law and a powerful reminder of the best practices that have developed for international arbitration."
--Sabine Konrad

"Highly recommended--an essential collection for the arbitral tool-box."
--V.V. Veeder

"This work is going to be a valuable desktop reference for all arbitration practitioners, particularly in highlighting the CPR Protocols, which are not widely known outside the US. Having all the major soft law protocols in one place with authoritative commentaries will greatly assist all practitioners in being able to check quickly on what to look out for when preparing a case for written presentation, oral argument or (for arbitrators) presiding and determining the issues."
--Michael Hwang

Author/Editor Detail: