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The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration (hereinafter “the Prague Rules”)

The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration (hereinafter “the Prague Rules”) 0AEnG

The Prague Rules on the Efficient Conduct of Proceedings in International compromise (hereinafter “the Prague Rules”), according to the Preamble, are intended to provide a framework and/or guidance for arbitral tribunals and parties on how to increase the efficiency of arbitration by encouraging a more active role for Arbitral Tribunals in managing proceedings. The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration (hereinafter “the Prague Rules”), according to the Preamble, are intended to provide a framework and/or guidance for arbitral tribunals and parties on how to increase efficiency of arbitration by encouraging a more active role for Arbitral Tribunals in managing proceedings. Despite above-stated official purpose of the Rules, it is also argued that the Prague Rules operate under the shadow of an apparent war between common law and civil law armies for dominance over the international arbitration landscape. According to the proponents of that concept, the Prague Rules are a manifestation in favour of the civil law tradition and of an inquisitorial approach in international arbitration, as well as an attack on the inefficiencies of the adversarial approach which has been embodied under common law-dominated International Bar Association Rules on the Taking of Evidence in International Arbitration. One of the main indications for the promotion of civil law tradition under the Prague Rules is the assistance of Arbitral Tribunal to parties in amicable settlement which is regulated within Article 9 of the Rules. Under that article, the Prague Rules mandate the tribunal to facilitate the amicable settlement of disputes between the parties and provide a number of options for achieving this aim. While it may be generally inconceivable for a “common law” arbitrator to initiate facilitation of settlement, a “civil law” arbitrator will most likely be comfortable with encouraging parties’ discussions to settle the case. For instance, arbitrators from “Germanic” jurisdictions such as Germany, Switzerland, and Austria tend to adopt a different, proactive approach to the facilitation of settlements in arbitration and that proactive role of the arbitrator as “dispute-resolver”, rather than a mere “dispute-decider”, is deeply rooted in the traditional role of domestic judges in those jurisdictions. Conversely, this view of the role of courts and arbitrators differs from that of the common law (especially within US jurisdiction), where it is seen as a premature expression of the tribunal's legal opinion and hence a possible ground for challenge. Although amicable settlement with the assistance of Arbitral Tribunal has been formulated under the Prague Rules as a method in favor of procedural efficiency and proactive role of arbitrators, this memorandum will evaluate the potential practical problems which may arise from the regulation of this method under these Rules.

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