Concerns of Legitimacy in the Application of Soft Law in International Arbitration.

Prakhar Agarwal

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The impartiality and independence of an arbitrator are of paramount significance in international arbitration. This hypothesis is reflected in almost all the arbitration laws. However, the procedure to be followed while dealing with this issue of conflict of interest has not been elaborated in any arbitration law. Hence, the arbitrators, parties, Courts and arbitral institutions often stuck in dilemma as to what information is required to be disclosed and what are the standards to be followed while doing so. In the wake of this, the IBA Guidelines on Conflict of Interest in International Arbitration serve the requirements. However, these IBA Guidelines are in nature of soft law and hence are nonbinding in nature. Consequently, the issue of their legitimacy arises. In light of this, after giving the general introduction to soft laws and their importance in arbitration, the essay will maintain that IBA Guidelines on Conflict of Interest in International Arbitration has been instrumental in regulating issues concerning conflict of interest. It has increased transparency, leveled the playing field and protected the integrity of arbitral award against challenges. Further, these Guidelines have been widely accepted by Courts, arbitral institutions and among the rest of the arbitration community while dealing with the issues of impartiality and independence of the arbitrator. Lastly, the essay will establish that there is complete legitimacy in the codification and application of these Guidelines, in so far as they facilitate flexibility to complement predictability, enhances the efficiency of the arbitral proceeding, ensures fairness and hence aids in delivering justice to the parties.