Inherent Power of Arbitrators to Exclude Counsel? - Chapter 3 - Inherent Powers of Arbitrators
Originally from Inherent Powers of Arbitrators
The first task of this chapter is to adopt a working definition of the term “inherent powers”. The chapter then considers whether arbitrators may exclude counsel pursuant to their inherent powers, and if so on what grounds.
The elusiveness of the term “inherent” complicates the initial task; a specific, comprehensive and authoritative definition is not available, even in soft law instruments or in secondary sources of international law. However, some scholars have helpfully pointed to the concept of “necessary judicial powers”, the elimination of which would equate to “effectively eliminates the judicial character of the tribunal in question”.
This concept is in turn connected to the idea that arbitrators are both service providers and adjudicators. These two roles are integral to the arbitrator’s identity, as provided for in arbitration rules and national arbitration acts, the lex arbitri. To the extent that one restricts an arbitrator’s ability to exercise inherent powers, one diminishes her adjudicator role, and in doing so may actually adversely affect the service that the arbitrator can provide (and is intended to provide) to the parties. Stated differently, if inherent powers are judicial powers, then their scope may be determined in relation to the points in the process when arbitrators must act as adjudicators, because failure to do so would (a) endanger the fairness and efficiency of the procedure, and (b) accordingly, put enforcement of the award at risk.
This dual identity of service provider/adjudicator is present in each individual case. The definition of international arbitration as a consensual process, whereby the parties’ election creates arbitral jurisdiction and defines its contours, is correct as far as it goes.