“Soft law” is a current buzzword and considered a panacea for all kinds of issues that arise in international commercial arbitration. Very little research has, however, been done on the dogmatic underpinnings of the concept and its actual legal relevance. This course follows the development of the so-called “soft law” from its origins in public international law to commercial arbitration, where it is used today as a label for various instruments and phenomena, covering both procedural aspects and the applicable substantive law: model laws, arbitration rules, guidelines, the UNIDROIT Principles, the lex mercatoria, and others.
It presents three particularly well-known sets of guidelines by the International Bar Association and discusses the pros and cons of “soft law” instruments and their potential normativity. The analysis suggests that “soft law” instruments are typically less well recognised in practice than is generally assumed. The author explains what such instruments can achieve and what minimum requirements they have to fulfil to at least aspire to some legitimacy. He argues ultimately that “soft law” instruments can be very useful tools, but they do not carry any normativity.

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Felix Dasser is Adjunct Professor (habil.) of the University of Zurich, mainly teaching international dispute resolution at the Universities of Zurich and Berne and at the China University of Political Science and Law. He is also partner at the Swiss law firm Homburger, specializing in international litigation and arbitration. He is currently President of the Swiss Arbitration Association.
Chapter I. Setting the stage
A. General introduction
B. Arbitration : a creature of contract and a font of freedom
C. International commercial arbitration (ICA)
1. Favoured dispute resolution mechanism in international trade
2. Other types of arbitration
3. Current challenges facing ICA
3.1. Challenges ? What challenges ?
3.2. Clash of cultures
3.3. Expansion into “new” regions
3.4. Perceived lack of ethics
3.5. Increasing judicialization
3.6. Duration and costs
3.7. Lack of transparency
3.8. Lack of published arbitration case law
3.9. Lack of trust in the arbitration process by State actors
4. Soft law as the answer ?
D.  Soft law: a preliminary definition
Chapter II. The origin : soft law in public international law
A. Introduction
B. The traditional sources of public international law
C. The emergence of soft law
1. “The crumbling of the columns of the temple”
2. “Plan B” : declaratory and progammatory soft law
3. A new label for new concepts: “soft law”
4. Critique of “soft law” in public international law
5. Binding effect of non-binding instruments ?
D. Lessons learned
Chapter III. The transfer: the rise of the concept in ICA
A. An analogy in private law?
B. First came the instruments
C. Then came the label
D. Something lost in translation
Chapter IV. Phenomenology : the most often mentioned “soft law” sources and instruments
A. Introduction
B. Procedural “soft law
1. UNCITRAL Model Law on International Commercial Arbitration (1985/2006
2. UNCITRAL Arbitration Rules (1976/2010/(2013))
3. UNCITRAL Notes on Organizing Arbitral Proceedings (1996/2012/2016)
4. ICC Arbitration Rules
5. ICC Guide for In-House Counsel and Other Party Representatives on Effective Management of Arbitration
6. Guidelines of the International Bar Association (IBA)
7. Guidelines of the Chartered Institute of Arbitrators (CIArb)
8. “Best practice”
9. Other procedural instruments
C. Substantive “soft law”
1. Overview
2. UNIDROIT Principles of International Commercial Contracts
2.1. Background and history
2.2. Scope of application
2.3. Content
2.4. Prevalence in practice
2.5. Assessment
3. The “new lex mercatoria”
3.1. Historical development
3.2. The content
3.3. Prevalence in practice
3.4. Assessment
D. Concluding remarks
Chapter V. Deep dive I: the IBA Rules on the Taking of Evidence in International Arbitration (2010)
A. Background : filling a huge gap in arbitration rules and laws
B. The making of the IBA Rules
C. The concept
D. Document production in particular
E. Prevalence in practice
F. Competition for the IBA Rules ? The Prague Rules
G. Assessment
Chapter VI. Deep dive II: the IBA Guidelines on Conflicts of Interests in International Arbitration (2014)
A. Background : tackling one of the trickiest issues in arbitration
B. The making of the IBA Guidelines on Conflicts of Interest in International Arbitration
C. The concept
D. Prevalence in practice
1. References by State legislators
2. References by practitioners and arbitral institutions
3. References by courts
3.1. Overview
3.2. Swiss Federal Tribunal (Swiss Supreme Court)
3.3. The High Court of Justice of England and Wales
3.4. Other courts
E. Assessment
Chapter VII. Deep dive III: the IBA Guidelines on Party Representation in International Arbitration
A. Background
B. The making of the IBA Party Representation Guidelines in International Arbitration
C. The concept
D. Prevalence in practice
E. Assessment
Chapter VIII. Synthesis
A. What can “soft law” instruments achieve ? What not ?
1. Filling gaps
2. Providing harmonization and predictability
3. Educating newcomers
4.  Levelling the playing field
5. Preventing State intervention by self-regulation
B. Minimum requirements for an instrument aspiring to gain a superior status as “soft law”
1. Institutional legitimacy
2. Procedural legitimacy
3. Acceptance by the community
4. Conclusion
C. The verdict: soft law is not law
Chapter IX. Whither hence ?
A. Too much or still not enough guidelines and other “soft law” by now?
B. The return of the Wizard of Oz ?
C. Instruments as tool, competing tool
About the Author
Biographical note
Principal publications.
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