The Emergence of Soft Law as an Applicable Source of Procedural and Substantive Law in International Arbitration

Ali, S. "The Emergence of Soft Law as an Applicable Source of Procedural and Substantive Law in International Arbitration" in Andrea Bjorklund, Franco Ferrari, Stefan Kroll (eds) Cambridge Compendium of International Commercial and Investment Arbitration (Cambridge University Press, Forthcoming)

University of Hong Kong Faculty of Law Research Paper No. 2021/011

31 Pages Posted: 22 Mar 2021 Last revised: 7 May 2021

See all articles by Shahla F. Ali

Shahla F. Ali

The University of Hong Kong - Faculty of Law

Sabine Katrin Neuhaus

Kellerhals Carrard

Date Written: February 26, 2021

Abstract

The advent and development of soft law in international arbitration is no new phenomenon. More than thirty years ago, a proposition was advanced that soft law has become nearly indispensable in international arbitral practice (Reismann, 1988). Today, while there are many who fully support this proposition, a growing number of actors in international arbitration generally take a critical stance regarding the non-consensual use of soft law in arbitral proceedings. The aim of this chapter is to analyse these two poles in order to examine the current state of soft law in international arbitration. This chapter first discusses the theoretical concepts of soft law in international arbitration. Then, the application of soft law in international arbitration is explored, by taking into account its relevance to commercial and investment arbitration. Finally, prominent soft law instruments pertaining to procedure, ethics and the merits of an arbitration case will be assessed briefly both in terms of reasons for their development and reception in practice. The chapter concludes with some reflections on the role of soft law in today’s arbitral practice and possible future developments.

Keywords: International arbitration, Soft law, Arbitral procedure, Theories of soft law, Arbitral ethics

JEL Classification: K3

Suggested Citation

Ali, Shahla F. and Neuhaus, Sabine Katrin, The Emergence of Soft Law as an Applicable Source of Procedural and Substantive Law in International Arbitration (February 26, 2021). Ali, S. "The Emergence of Soft Law as an Applicable Source of Procedural and Substantive Law in International Arbitration" in Andrea Bjorklund, Franco Ferrari, Stefan Kroll (eds) Cambridge Compendium of International Commercial and Investment Arbitration (Cambridge University Press, Forthcoming), University of Hong Kong Faculty of Law Research Paper No. 2021/011, Available at SSRN: https://ssrn.com/abstract=3793316

Shahla F. Ali (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Chung Yu Tung Tower (Law), Centennial Campus
Pokfulam Road
Hong Kong
(852) 3917 2931 (Phone)
(852) 2559-3543 (Fax)

HOME PAGE: http://www.hku.hk/law/faculty/staff/ali_shahla.html

Sabine Katrin Neuhaus

Kellerhals Carrard ( email )

Effingerstrasse 1
Bern, BE 3001
Switzerland

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