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

1. INTRODUCTION

I must admit that when I was first presented with the topic I was
worried that it would, inevitably, be boring. Thinking of my own
practice as an arbitrator and what I had seen as counsel, it seemed to
me that there is today a more or less established practice as to how
arbitrators shape the proceedings. I trust that not only I but a lot of my
arbitration colleagues have a set of sample documents under the
various institutional rules ready. Nothing speaks against following the
standard procedure in a number of cases. But it should not make us
blind and lazy when we detect circumstances that request the
arbitrator’s initiative to come up with a tailor-made solution.
It is precisely this realization that prompted me to approach the
topic from a very practical angle and to first present the standard
procedure that I have seen used in order to initiate discussions with
the parties and then to describe a few tools that have proven useful in
allowing for a more tailor-made structuring.

2. LEGES ARBITRI AND ARBITRATION RULES FOR THE
ARBITRAL TRIBUNAL’S POWER TO SHAPE PROCEEDINGS

2.1. The Principle of Party Autonomy
Most national arbitration laws recognize the principle of party
autonomy regarding the arbitral procedure,1 with the result that an
agreement between the parties is binding upon the arbitrators.2