Originally from: Between East and West: Essays in Honour of Ulf Franke - Hardcover
Between East and West: Essays in Honour of Ulf Franke - Electronic
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Arbitration Guidelines: Straitjacket or Compass?
Hans van Houtte
I. INTRODUCTION
In recent times, many arbitration institutions and other bodies have
issued guidelines for arbitrators on how to conduct arbitration
proceedings. This short contribution will discuss the relevance for and
impact of these guidelines on the arbitration process.
It will first depict how the arbitration scene has evolved in the last
forty years as arbitration guidelines have to be seen against the historical
background of deregulation (II). It then will describe different “guidelines”
which have already been issued (III). This description will be limited to
guidelines on the conduct of proceedings. That will exclude, for instance,
the Guidelines of the Arbitration Institute of the Stockholm Chamber of
Commerce, of which Ulf Franke has been the energetic Secretary General
for many years, which address the financial and tax aspects of the
arbitrator’s activities. Nevertheless, as Ulf Franke is interested in all
aspects of the arbitration process, he will already have pondered about the
general title and third part of this contribution—to what extent
“guidelines” on the conduct of proceedings are indeed mere guidelines,
which are a useful source of inspiration in the conduct of arbitration
proceedings and do not restrict the participants’ freedom (IV).
In conclusion, “creeping normalisation” to which true guidelines may also
lead, will briefly be discussed (V).
II. HISTORICAL BACKGROUND: THE DEREGULATION OF
ARBITRATION
For the first sixty years of the previous century, arbitrators conducted
themselves like quasi-judges. On the European continent their arbitration
proceedings very often imitated court proceedings; only when they were
allowed to decide as “amiable compositeur” were they not bound by the
“strict procedural rules, formalities, and time bars that had to be applied in
the State courts.” The arbitrators could not, for instance, use other rules
on evidence than the state courts and they examined witnesses as the State
judges did.
About the Author:
Dr. Hans Van Houtte has sat in over 150 cases as an arbitrator—most often as chairman—in commercial and investment arbitrations before numerous international arbitration institutions. He teaches at the Faculty of Law, Leuven University and directs the Institute for International Trade Law.
