Newsletter-21

185 ARBITRATION LAW practitioners, and especially arbitrators, where arbitration laws and rules are deficient. Soft law can appear as guides, rules, codes, recommendations, guidelines, notes, etc. The title of these norms mainly depends on the drafters’ position and how it would like such rule to be understood. Procedural soft law norms that are mostly referred to in arbitra- tion are codified by arbitration-related bodies, such as the International Bar Association (“IBA”). The IBA is one of the institutions that drafts numerous PRTs. The most popular and widely used PRTs issued by the IBA are the IBA Rules on the Taking of Evidence in International Arbitration (“IBA Guidelines on Evidence”), and the IBA Guidelines on Conflicts of Interest in International Arbitration. These norms are not considered as part of a state’s domestic law and are related to issues that are not covered by arbitration rules. This is one of the reasons when the International Chamber of Commerce Rules of Arbitration (“ICC Rules”) are applied, the parties and arbi- trators rely on the IBA Guidelines on Evidence for the issues where the ICC Rules do not provide guidance. In other words, these proce- dural norms are of a complementary nature. This is also stated in the foreword of the IBA Guidelines on Evidence that “[t]he Rules are designed to be used in conjunction with, and adopted together with, institutional, ad hoc or other rules or procedures governing interna- tional arbitrations.” One of the most differing characteristics of soft law from hard law is its non-binding effect. Soft law norms are mostly non-mandatory, not binding and, therefore, do not have full legal effectiveness. This is because the drafting authority either lacks such legal capacity, intends the rules to be not fully effective, or the implementing authority is unwilling to ensure full legal capacity. It is possible that PRTs in its preamble or foreword state its nature and way of application. In the foreword of the IBAGuidelines on Evi- dence, it is stated that “parties and Arbitral Tribunals may adopt the IBA Rules of Evidence, in whole or in part, at the commencement of Contracts, and the principles of European contract law.”