Originally from: Stockholm International Arbitration Review

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ARBITRATORS: PRIVATE JUDGES, SERVICE PROVIDERS, OR BOTH? -- CIETAC’S PERSPECTIVE

Mr. Yu Jianlong

The role of the arbitrator is a hot topic currently discussed in the international arbitration community. Is the arbitrator a private judge, a service provider, or both? This question in no doubt goes to the heart of the international commercial arbitration.

1. The Arbitrator as Private Judge

1.1 The Arbitrator as Private Judge

Generally, it may be said that arbitrator is a judge chosen by the parties to decide the matters submitted to him, finally and without appeal. Arbitrators are “judges” because they have the authority to decide the case and make the final and binding award. The powers, duties and jurisdiction of arbitrators differ from a judge of the court who derives its authority from the state, while the arbitrator’s authority arises from a complex amalgam of the will of the parties and the applicable laws. On the other hand, arbitrators are not judges in that they are not the servants of the state and have no responsibilities flowing from public policy. Arbitration is in its essence a private process. Arbitrators are private persons chosen by the parties to hear their case, and they hence are private judges of the parties.

1.2 Powers of Arbitrators

The parties choose arbitrators to hear their case and they must give arbitrators the authority to do so. The powers of an arbitral tribunal originate from the agreement of the parties subject to the limits provided by the applicable law.