Newsletter-21

187 ARBITRATION LAW issues regarding evidence appear before a state court within the scope of due process. Whether an arbitral tribunal applies the IBAGuidelines on Evidence would not be considered as a breach of the fundamental principles of procedure 5 . Possible Problems In practice, it is questioned whether an arbitrator has the discre- tion to apply soft laws without the agreement of the parties. This may create arguments against the enforceability of an award, or a party could make a claim with regard to a fair trial. Another important issue with regard to PRTs is whether an award could be challenged based on a PRT. In other words, could a party challenge the award by claiming that the arbitral tribunal violated a PRT. The answer to this question will be different for each PRT. In Switzerland, the Swiss Federal Tribunal tends to refer to the IBA Guidelines on Conflicts of Interest in International Arbitrations when it examines the independence and impartiality of the arbitrators. However, non-compliance with other PRTs is almost never an issue for annulment 6 . Conclusion Procedural soft law or PRTs are seen as important sources for players in international arbitrations that should be embraced by the ar- bitration community. Even though there are concerns as to PRTs’ legal effectiveness and legitimacy, or as to its application and the award’s enforceability and annulment, procedural soft law norms are increas- ingly adopted by arbitrators to fulfill their duties to conduct fair and impartial proceedings. Their adoption also helps the parties to picture the frame of their proceedings and avoid unexpected procedural un- certainties. 5 Kaufmann-Kohler , p.14. 6 Gross Balz, Stojiljković Mladen , The Challenge of an Arbitral Award on the Basis of a PRT in ASA Special Series No: 37, p. 127-138.