Originally from The Arbitrator's Initiative: When, Why and How Should It Be Used? - ASA Special Series No. 45

This ASA conference was a truly successful day with more than 200 participants attending to listen to the experts on the topic: “The arbitrators’ initiative: when, why and how should it be used?” Elliott Geisinger,  ASA President, introduced the topic of the conference by pointing out its immense practical interest. Then Domitille Baizeau  stressed the recurring issue of “the detached arbitrators vs. the involved arbitrators.” In her opinion, the topic of the arbitrators’ initiative is linked with a fear of “crossing the red line.”

Pierre Mayer,  the first speaker of this morning session, very eloquently introduced the programme by discussing the arbitral tribunal’s powers, the limits to party autonomy, and the boundaries to the arbitrator’s own initiative. He reminded us that the arbitrators’ powers are founded on both the technical (rules of law) and conceptual powers granted by the parties. After discussing two usual suspects, i.e., the adversarial versus the inquisitorial approach, Prof. Mayer made a case for the promotion of the truth as the arbitrator’s main objective. Such promotion may imply the taking of initiatives within the limits of the duty of impartiality, the duty not to modify the subject matter of the dispute (i.e., no suggestion by the arbitrators of new claims or new relief) and the problematic nature of imposing procedural initiatives such as the appointment of a neutral expert against the will of the parties.

I would observe that while the recurrent theme of the truth is well suited for an arbitrator’s approach to arbitration, counsel often pay lip service to the truth, but are really only interested in winning their cases, which may explain multiple “misunderstandings” in the course of the arbitral procedure.