A recognized benefit of arbitration is the power of the disputants to select, usually in advance, the procedural rules that will govern their dispute resolution. The right to determine procedural rules may be particularly important in transnational agreements where contracting parties are from States with different legal cultures. Of course, Parties capitalizing on this advantage do not draft new procedural rules for every transaction. Instead, the parties incorporate procedural rules created by arbitral institutions into their agreements. This creates clear incentives for institutions to develop thorough yet flexible procedural rules. Despite this incentive, the rules themselves may be deficient in resolving a particular procedural issue. In these cases, the tribunal must make an important determination: Is there a gap in the rules that must be filled by an exercise of the tribunal’s discretion or does the silence imply an intent to preclude a particular procedural mechanism?
Much has been written on the identification of gaps in party contracts by arbitral tribunals; however, the literature is largely silent on the identification of gaps in procedural rules. In this paper I will provide background on the nature and consequences of a gap and propose a Borrowed Rule Principle to help tribunals determine whether a gap exists. I will apply the Borrowed Rule Principle to two provisions from the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada Rules (CAM-CCBC Rules) to determine whether those provisions contain gaps that must be filled.
Mind the Gap: Proposing a Tool for Identifying Gaps in Institutional Arbitration Rules,
Fla. A&M U. L. Rev.
Available at: https://commons.law.famu.edu/famulawreview/vol13/iss1/7