Good Faith: The Silent Pillar of Arbitration  

In arbitration—as in life—not everything is written. Beyond rules, deadlines, and formalities, there exists a principle that silently upholds the legitimacy of the process: good faith. It is not always mentioned, rarely expressly regulated, yet when it is absent, arbitration suffers and loses its essence.

Revisiting this principle is not an academic exercise, but a practical necessity. Good faith, derived from the Latin fides, refers to trust, loyalty, and credibility—in other words, to the idea that one’s word and conduct matter. In law, and particularly in alternative dispute resolution mechanisms, this notion carries particular weight: without trust, arbitration simply does not function in the same way.

Good faith is a concept of universal scope. Although deeply rooted in law—especially in the rules governing contracts and obligations—few legal systems provide an express definition of it. Its effects, however, are clear: the presence of good faith may mitigate or even exclude liability, while its absence, manifested through bad faith, may aggravate liability or give rise to adverse legal consequences.

More than mere compliance with rules, good faith imposes a way of conducting oneself. It entails acting with honesty, consistency, and procedural loyalty, based on the conviction that the process is not a battle designed to wear down the opposing party, but a mechanism to resolve a dispute efficiently and fairly.

Manifestations of bad faith are often evident: strategic and unjustified challenges, irrelevant evidentiary requests, procedural incidents designed to delay the proceedings, or submissions that confuse rather than clarify. Such conduct not only hinders arbitration; it strips it of substance. And although these actions are not always formally sanctioned, they almost always come at the cost of credibility before the arbitral tribunal.

The principle of good faith also operates silently when parties decide which battles to fight and which to avoid. At times, restraint—not filing an unnecessary application, not forcing a weak argument, not delaying without justification—is the clearest demonstration of respect for the arbitral process. In this sense, good faith is not naïveté, but legal maturity.

In the international sphere, the principle of good faith takes on an even greater dimension. A paradigmatic example is the Vienna Convention on the Law of Treaties, whose Article 31 provides that treaties must be interpreted in good faith, in accordance with the ordinary meaning of their terms in their context and in light of their object and purpose. This principle also underpins the doctrine of conventionality control, developed by the Inter-American Commission on Human Rights, pursuant to which States must comply with their international obligations and may not invoke domestic law as a justification for non-compliance.

This logic has a direct impact on international arbitration, particularly in the application of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Paradoxically, most arbitration rules do not expressly regulate good faith. However, when it does appear—as in the Arbitration Rules of the Madrid Court of Arbitration and those of the London Court of International Arbitration (LCIA), which link good faith not only to the parties and the tribunal but also to the arbitral institution—it serves as a reminder that arbitration is not merely a technical exercise, but also an ethical one.

A judicial or arbitral proceeding may be formally correct and yet profoundly unjust.

The doctrine of acts contra factum proprium, known in common law as estoppel, reinforces this idea: one who acts in a certain manner cannot later claim the opposite. Consistency is not a luxury; it is a minimum requirement of good faith. And in arbitral proceedings, such consistency is indispensable.

Perhaps for this reason, good faith—together with the principle of party autonomy—constitutes the silent pillar of arbitration: it is not always visible, but when it is absent, everything begins to falter. Recalling it is not a romantic gesture, but a defense of arbitration as a serious, efficient, and legitimate mechanism for dispute resolution.

blplegal.com