The Arbitrator's Power to Issue: Procedural and Interim Orders - Chapter 27 - AAA Handbook on Commercial Arbitration - 2nd Edition
Donald Francis Donovan is a partner in the firm of Debevoise & Plimpton in New York and teaches international arbitration at New York University School of Law. Donovan holds a B.A. from the University of Virginia and a J.D. from Stanford Law School. He is the author of The Scope and Enforceability of Provisional Measures in International Commercial Arbitration, INTERNATIONAL COMMERCIAL ARBITRATION: CONTEMPORARY QUESTIONS 82-129 (ICCA Congress Series 2003). Mr. Donovan thanks his colleagues Sally Fitzgerald and John Driscoll for their assistance in preparing this chapter.
Arbitral procedures, like their court counterparts, are the nuts and bolts of dispute resolution. If in their final deliberations the arbitrators are able to craft a just award based on the law and facts adduced before them, it will only be because the arbitral procedures they and the parties adopted allowed the relevant law and facts to be adequately developed. And, needless to say, the award will be effective only if the arbitrators have been able to enter such orders as might have been necessary to preserve the subject matter of the dispute for their eventual resolution. Out of the twin objectives of fairness and effectiveness arise the powers of an arbitral tribunal to issue procedural orders and orders of interim measures, as well as the corresponding obligation of the parties to abide by them. This chapter will consider the sources and scope of the arbitrators’ authority to issue such orders.
II. Sources of Authority
There are three sources of authority for arbitrators to issue procedural orders: the parties’ agreement, the curial law, and inherent authority.