I. Introduction: The Notion and Scope of Inherent Powers of Arbitrators
It has become fashionable to speak of inherent powers of arbitrators. I am partly responsible for this, as one of the authors of the International Law Association’s report on Inherent Powers of Arbitrators in International Commercial Arbitration, (the “ILA Report”), which is amongst the first comprehensive analyses of this topic. Inherent powers of arbitrators are now routinely discussed in respect of almost the entire range of arbitration topics.
Before addressing the specific subject matter of this contribution, which is the relevance of the concept of inherent powers to the analysis of the powers of arbitrators in the application of the principles for the decision on the merits, it is useful to recall briefly the fundamental notions on the inherent powers of arbitrators.
According to the definition that appears most convincing, in the context of international commercial arbitration, inherent powers of arbitrators are those powers which are considered necessary to allow arbitrators to deal with situations that arise before them so as to enable them to perform their adjudicatory functions, but which are not conferred by the rules from which their authority depends. Such rules are contained in the law of the seat of the arbitration, the institutional rules (if any) and the agreement of the parties. The need to have recourse to the notion of inherent powers is therefore largely a function of the rules on which the authority of arbitrators rests.