The Last Citadel: The Restricted Role of Lawyers in Soft Commodity Arbitration

Abstract

For a long time, soft commodity arbitration has been portrayed as over-simplistic and possibly archaic. Critical observations have traditionally focused on non-legal adjudicators and non-legal party representatives struggling to apply English law to the international sale of soft commodities. Some of the key features of these arbitral proceedings – arbitral panels consisting mostly of traders, the limits on party representation by legal counsels in oral hearings and the non-reimbursement of legal costs unless both parties agree - have caused great dissatisfaction to those emphasizing international arbitration as an area exclusively for sophisticated first-class international lawyers.

On the basis of current research in law and economics, this article suggests revisiting the restricted role of lawyers in soft commodity arbitration from the added value to trade perspective. Empirical studies showing the courts’ limited possibilities of establishing trade usages and customs and theories of contractual formalism and minimalism can go some way towards explaining the phenomena of limiting lawyers’ access to soft commodities arbitration.