Beyond High Hopes and Dark Fears: Towards a Deflationary View of Soft Law in International Arbitration.

Soft law continues to divide the arbitration community. While its supporters see it as a useful and even necessary form of regulation, its detractors view it as unwelcome interference in tribunals' and parties' procedural freedom. Drawing on the origins of soft law in Public International Law, as well as more recent academic debate in that field, the authors examine its legitimacy and efficacy in international arbitration. They argue that there are sufficient similarities between soft law in both areas of law to justify the application of the term to at least some good practice instruments. They conclude that far from there being a proliferation of soft law instruments in arbitration, considerable importance and influence attach only to a small number of instruments, themselves dependent on heavy institutional backing. Because of its lack of enforceability, uncertain foundation in common practices, and sometimes impracticable formulation as mere recommendation or guidance, soft law is an unwieldy and limited tool for regulating arbitration. To overcome past controversies and to give it meaningful effect the authors advocate a deflationary view of soft law, which shifts the focus away from presumed institutional authority to individual user acceptance, and derives the legitimacy of soft law from the quality of recommendations rather than postulated consensus. [ABSTRACT FROM AUTHOR]