Originally from Inherent Powers of Arbitrators

Preview 

I. INTRODUCTION

“[D]umpster diving … ‘convincing’ an arbitrator to go home rather than attend deliberations … death threats!!! … changing counsel mid-proceedings to create a conflict with an arbitrator … wiretapping opposing counsel’s meeting rooms … hiding damaging documents that were ordered to be disclosed … raising fourteen challenges to a single arbitral tribunal … physically assaulting the opposing party … raising excessive frivolous objections to ‘run the clock’ at an evidentiary hearing … threatening a witness that he would ‘never work again’ to dissuade him from testifying … absurdly excessive requests for document disclosure … hiring private detectives to follow and observe arbitrators … staging a car accident with opposing counsel to prevent attendance at a hearing ….”   This list provides some examples of (witnessed or alleged) party conduct in international arbitration proceedings, which, according to some surveys and anecdotal evidence, have been occurring more and more frequently. 

Much ink has been spilled on the question how arbitral tribunals should deal with this type of party (mis-)conduct.   One controversial issue is whether, and to what extent, arbitral tribunals have the power to sanction such conduct.   While some are in favor of providing broad powers to arbitral tribunals to sanction improper conduct by parties or their representatives,  others speak out against the so-called policing powers of arbitral tribunals: “[a]rbitrators are named to resolve disputes between parties, not to police the conduct of their representatives ….”