Mind the Gap: Proposing a Tool for Identifying Gaps in Institutional Arbitration Rules
Bibliographic record
Abstract
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.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.033 | 0.071 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.002 | 0.003 |
| Bibliometrics | 0.010 | 0.006 |
| Science and technology studies | 0.005 | 0.024 |
| Scholarly communication | 0.013 | 0.028 |
| Open science | 0.005 | 0.011 |
| Research integrity | 0.008 | 0.011 |
| Insufficient payload (model declined to judge) | 0.008 | 0.002 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".