Procedural flexibility is a key advantage of arbitration. However, flexibility, if abused, can also become a weakness; proceedings risk becoming endless and overly costly. Indeed, according to seasoned practitioners, instances of abuse have been on the rise in the past fifteen years or so, thus threatening to undermine arbitration’s reputation.
Against this background it seems paradoxical that tribunals appear to have largely rejected allegations of abuse in the same period. This lack of positive findings, in a period where abuse is said to have increased significantly, suggests that arbitral tribunals have been either incapable of acting, or simply unwilling to do so.
Recently, tribunals have become more active, finding abuse in circumstances where they had previously rejected similar allegations. This is said to be a positive trend. However, this development also suggests that previous tribunals have been unwilling to act, considering that nothing has fundamentally changed in tribunals’ powers to regulate the arbitral process.