BEST PRACTICES IN INTERNATIONAL ARBITRATION AND EXTRACTIVE ARBITRATIONINDUSTRIE EXTRACTIVE LES BEST PRACTICES DE L'ARBITRAGE INTERNATIONAL ET DE L'ARBITRAGE EXTRACTIF BEST PRACTICES IN INTERNATIONAL ARBITRATION AND EXTRACTIVE ARBITRATION (original) (raw)

2018, RDAI/IBLJ, No6, 2018

To practice international trade law, to practice extractive law for example, is to share the ‘‘professional practices‘‘ of the lawyers of this professional society. A changeover of what is traditionally called ‘‘the law‘‘ is achieved, which is no longer reduced to the rules of law created by States and international institutions or international arbitrators, but is defined as the law chosen by the actors, such as the Societas Petroleatorum or Societas Extractivatorum of lawyers, transnational corporations, Contracting States, etc. The unity of international business law and ‘‘extractive law‘‘ must now be sought not in the rules of law but in the practices of actors who, for example, draw up singular contracts such as extractives (Oil and Gas, Mining) or practice international arbitration and can then very freely choose the law applicable to the procedure (forum shopping) but also to the substance of the dispute (law shopping), and thus create a space of norms, a ‘‘normative space.’’ However, practitioners—lawyers and arbitrators—now develop their own descriptions of professional practices— their best practices—particularly in the field of international arbitration and extractive arbitration. These practitioners consider that these best practicesare ‘‘competence repositories‘‘, pedagogical tools that serve to guide their professional practice. But let us not forget that these best practices are primarily aimed at adapting lawyers’ practices to market needs. The debate on the ‘‘perfect storm‘‘, i.e. the evolution of the demands of companies that no longer want lawyers (litigants or not) but problem solvers (‘‘resolvers will replace litigators’’), is an example of these discussions on the evolution of the legal market, which, in arbitration, take place very naturally on the basis of best practices. The interest of examining these best practices of arbitration is therefore to obtain an image of what a ‘‘good’’ arbitrator, or better, a good arbitration, is for the arbitration community itself. The question posed by these ‘‘professional skills’’ standards is twofold: what is their definition? But above all, what is their content?