by the Arbitration Association
RU

The Prague Rules - spirit and scope of application

February 7, 2019

 Introduction

In recent years the draft Prague Rules on the Efficient Conduct of Proceedings in International Arbitration ("Prague Rules", see http://praguerules.com/prague_rules/) has been hotly debated in various places across the world (see http://praguerules.com/events/). Whilst the number of supporters is growing, it is impossible to ignore also the criticism of this initiative coming from our colleagues http://praguerules.com/publications/. For instance, some opponents of the Prague Rules even call them a "little monster", regressive and dangerous.

At the same time this criticism often comes from lack of understanding why this initiative arose and the Prague Rules could be applied.


 Why are the Prague Rules needed at all?

Despite the tendency towards globalization and universalization, the world is, unfortunately, still a long way from universal and uniform regulation, including in the field of international arbitration.

While the IBA carried out an impressive task in creating a compromise between common law and civil law countries, the IBA Rules on the Taking of Evidence in International Arbitration ("IBA Rules") are still considered in common law countries as close to a civil law model of proceedings, while in civil law countries many practitioners believe that it is mainly based on common law concepts.

What are the common law features in the IBA Rules from a civil law perspective?

1      Almost unlimited right of the parties to bring witnesses of fact and experts; 

2      Assumption of a written witness statement;

3      Assumption of cross-examination; 

4      Assumption of document production.

Whilst the use of these procedures is fully justified in the event of disputes between companies from different legal tradition, but why in the event of a dispute between two companies coming from the civil law countries they should use in the disputes the procedural traditions of common law? Especially if neither the companies nor their representatives know how to apply these instruments and are not used to doing so.

Full version is available here.

Vladimir Khvalei,

Partner at Baker McKenzie, Moscow,

Member of the Prague Rules Working Group