Originally from Inherent Powers of Arbitrators

Preview 

I. INTRODUCTION

Arbitration has historically found favour as a flexible, efficient and cost-effective means to resolve international disputes. In recent years, however, some commentators have observed an emerging sense of frustration among the actors involved in international arbitral proceedings. This frustration is said to have developed principally in response to an increase in delays and expenses involved in international disputes, with some arguing that arbitration has, as a result, lost some of its competitive edge.

Relatedly, arbitral tribunals face increasing pressure to conduct proceedings cost-effectively and expeditiously. Institutional and other rules now regularly place express duties on arbitrators to adopt procedures that will assist in the efficient and expeditious handling of a case. Curiously, however, these same arbitration rules, together with the curial laws that provide supplementary procedural regulation, have often failed to provide specific powers on which tribunals may rely to expedite and streamline arbitration proceedings. Thus, arbitrators looking to employ more creative solutions have found themselves searching elsewhere for an appropriate foothold for their procedural authority.

In this respect, while arbitrators can and do make frequent reference to the broad discretionary powers afforded to them by arbitration laws and rules, tribunals have occasionally invoked so-called ‘inherent’ powers to streamline the arbitral process.

This chapter examines how arbitral tribunals in international arbitral proceedings have relied on these so-called inherent powers to streamline proceedings. To provide a better understanding of the scope of such powers, it discusses certain instances in which inherent powers have been ostensibly invoked by a tribunal to streamline proceedings, in particular, in the consolidation and joinder of proceedings, the bifurcation of proceedings and the use of summary disposition.