“The better part of valour is discretion;
in the which better part I have saved my life.”
The inherent authority of arbitrator discretion in the evidence gathering and presentation phases of international arbitration is rife with seemingly inexplicable paradoxes. By way of example, this authority is so ever present that it is ignored. Arbitrator discretion in evidence gathering and presentation is ubiquitous, yet little is written on the subject. It takes a proverbial “back seat” to other less salient but “more material” exercises of arbitrator inherent authority. Its importance as to the materiality of a proceeding’s outcome is peerless. But there is a paucity of doctrinal (academic, judicial, and arbitral) authority, however, addressing the extent to which the exercise of this discretion (i) places shackles on party-autonomy (the cornerstone precept of international arbitration), and (ii) the ways in which the conceptual framework that doctrinally distinguishes this inherent authority differs in practical and theoretical terms from all expressions of the inherent powers of arbitrators.
The ever-present exercise of arbitrator discretion as an inherent authority would ostensibly lead to the conclusion that the theoretical workings and application of such discretion would be subject to an objective standard that would harmonize it with the principle of party-autonomy. Such standard, however, is nowhere present. In this same vein, it descriptively and prescriptively would appear that a party’s due process right to present a case must ensure the appropriate protection to party-autonomy. Here too a paradox attaches.