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KLRCA Talk Series : Soft Law In International Arbitration – A Tool To Fight Or To Foster Guerrilla Tactics
12 Dec 2014

As the year end festivities continue to take shape, KLRCA greeted the month of December by organising yet another insightful Talk Series session titled, ‘Soft Law In International Arbitration – A Tool To Fight Or To Foster Guerrilla Tactics.’ Taking stage to present the topic was Professor Dr. Rouven Bodenheimer; with Lam Ko Luen, the current President of the Malaysia Institute of Arbitrators (MIArb) moderating the two hour evening slot.

Professor Rouven, a German who was recently named in ‘Who’s Who Legal: Arbitration 2015 Guide’ as one of the world’s leading arbitrators, began proceedings by inviting the audience to express their views openly as the topic was meant to be slightly on the thought provocative side. He then went on to share the definition of ‘Soft Law’ – a term that refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat “weaker” than the binding force of traditional law, often contrasted with soft law by being referred to as “hard law”

The attendees were then taken through a list of the alleged purposes of soft law that included; establishing a common playing field, familiarization with foreign tools, ensuring that basic issues for each stage are remembered, establishing ethical standards, prevention of obstructive behaviour and increasing efficiency. Professor Rouven expounded on each point briefly before going on to list ‘Marketing tool for Institutions’, ‘Visibility for practitioners’, and ‘Marketing tool for law firms’ as further purposes of soft law.

At this point, a few heads were already turned seeking out in anticipation for the connecting slides on guerrilla arbitration; in which Professor Rouven duly obliged by projecting an exhaustive list of guerrilla tactics on the screen. He said, “Soft law aims only partly at fighting guerrilla tactics.” Elaborating further on this statement, Professor Rouven provided examples that included ‘bribery’, ‘delay tactics’, ‘frivolous challenges’, and ‘guerrilla tactics on evidence and within the Arbitral Tribunal’.

The attendees were challenged to look beyond the conventional guidelines of multiple arbitral institutions, and as to how certain ‘loopholes’ incline towards fostering guerrilla tactics. The thought stimulating presentation was concluded with Professor Rouven stating; ‘soft law as a great help in technical matters’ and ‘soft law as the enemy of common sense and the greatness of being different.’ He then proceeded to pose ‘the hen and the egg problem’ linking it to the talk’s topic – a conundrum that set the scene for an intriguing question and answer session.

Lam Ko Luen stepped in to moderate the remaining half and hour of the evening’s proceedings. There was a fair and balanced share of feedback from the audience covering both aspects of the argument.

The evening talk soon drew to a close as both participants and presenters adjourned to the Centre’s outdoor cafeteria to network and further exchange perspectives on the topic.