One of the current fundamental concerns regarding international arbitration is the time and cost that it is associated with it. Many say that this reflects the increasing complexity of the disputes that are resolved by arbitration and that such complexity is a result of the importation of traditional “common law” litigation expedients. Many others say that the problem lies elsewhere: weak arbitrators, who in turn rely exclusively on the existing sets of rules, which require them to obey strictly and rigorously the “sacrosanct” commands of due process.
This landscape has raised concerns related to the creeping and evergrowing paranoia on due process, which has turned many arbitrators the captives of the initiative and requests of the parties and, therefore, contributors to lengthy and costly proceedings.
On the other hand, it has also been pointed out that the derailing of arbitration proceedings is especially acute when it comes to the taking of evidence.
In this regard, the IBA Rules on the Taking of Evidence in International Arbitration have been playing a fundamental role. They strike a balance between “common law” and “civil law” traditions.
However, that is what is in writing, not what has been the practice. Thus, some crucial questions arise: What if granting more powers to arbitral tribunals, making them more pro-active and more in control of the conduct of proceedings, renders arbitration more expeditious and more efficient? What if arbitral tribunals have not been as controlling and pro-active because the existing rules and legal framework simply do not leave arbitrators at ease in doing so? What if the parties themselves are not aware that they can and should accord more powers to arbitral tribunals, and that they are not comfortable in doing so because there is no set of rules that expressly points in that direction?
Those are the fundamental issues that the “Rules of Prague” eventually address by setting forth a host of major principles to apply by arbitral tribunals.
The Prague Rules may be found at www.praguerules.com.ASA Bulletin