The Prague Rules: an alternative approach!

The Prague Rules: A Competitor, an Alternative or an Addition to the IBA Rules on the Taking of Evidence in International Arbitration?

One of the current fundamental concerns regarding international arbitration is the time and cost that it is associated with it.

Many say that this reflects the increasing complexity of the disputes that are resolved by arbitration and that such complexity is a result of the importation of traditional “common law” litigation expedients.

Many others say that the problem lies elsewhere: weak arbitrators, who in turn rely exclusively on the existing sets of rules, which constricts them to obey strictly and rigorously to the “sacrosanct” commands of due process.

This landscape has raised concerns related to the creeping and ever-growing paranoia on due process, which has turned many arbitrators the captives of the initiative and requests of the parties and, therefore, contributors to lengthy and costly proceedings.

On the other hand, it has also been pointed out that the derailing in arbitration proceedings is especially acute when it comes to the taking of evidence.

In this regard, the IBA Rules on the Taking of Evidence in International Arbitration have been playing a fundamental role in according arbitral tribunals with powers to conduct the case in a cost and time-effective manner. They strike a balance between “common law” and “civil law” traditions.

However, that is what is in writing, not what has been the practice. Thus, some crucial questions arise: What if granting more powers to arbitral tribunals, making them more pro-active and more in control of the conduct of proceedings, renders arbitration more expedited and more efficient? What if arbitral tribunals haven´t been as controlling and pro-active because the existing rules and legal framework simply do not leave arbitrators at ease in doing so? What if the parties themselves are not aware that they can and should accord more powers to arbitral tribunals, and that they are not comfortable in doing so because there is no set of rules that expressly points in that direction?

Those are the fundamental issues that the “Rules of Prague” (known as such because of their planned official launch in Prague, on 14 December 2018) eventually address by setting forth a host of major principles to apply by arbitral tribunals.

The Prague Rules expressly adopt a “civil law” mindset which is found in four fundamental areas of the conduct of proceedings: the proactive role of the arbitral tribunal; broad and inquisitorial powers accorded to tribunals; jura novit curia provisions; and facilitation of settlement.

The Prague Rules may be found at www.praguerules.com