Originally from Leading Arbitrators' Guide to International Arbitration - 2nd Edition

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I. INTRODUCTION    

To many arbitrators, this debate is sterile in almost every practical sense. To the simple question whether the arbitration tribunal or the parties are the masters now, there can be only one answer. It is the parties’ dispute; and the parties can settle their dispute at any time, in whatever manner and on whatever terms of their own choosing. It is therefore the parties’ arbitration; and subject to reasonable payment for its services, the arbitration tribunal exists subject always to the parties’ collective will; and still more so, an arbitral institution administering the arbitration. There is no room for arbitral dictators; no arbitration tribunal functions by divine right; and in any consensual arbitration an arbitrator’s primary qualification derives only from his or her appointment, directly or indirectly, by the disputant parties. Without that, an arbitrator is nothing; and in their creation, arbitrators necessarily acknowledge as their creator the disputant parties. And yet, the perennial nature of the debate suggests that this apparently simple question is much more complicated. How can this be?

II. THREE COMPLICATIONS

The first complication arises from the fact that the debate thrives on anecdotes which concern not the parties but the parties’ legal representatives. There is a natural tendency, particularly where the arbitration tribunal is comprised of non-lawyers (or even lawyers not or not recently in practice) for a commercial arbitrator to secondguess the parties’ legal representatives in the belief that an arbitrator better understands the parties’ true interests than their own rapacious lawyers, particularly in matters of arbitral procedure. It is not always easy for arbitrators to remember that an advocate’s task is usually more difficult than the arbitrator’s function and, moreover, that in any major international arbitration the role of the parties’ advocates is no less essential to the arbitral process than that of the arbitration tribunal. Nonetheless, sometimes the arbitrator may be right; an advocate can be foolish or unskilled or parochial; but even then the thesis is proven: the arbitrator is asserting the parties’ true interests and not his own independent status separate from the parties. The debate is therefore not advanced by tales of warfare between lawyer and arbitrator: both are asserting different applications of the same principle: it remains the parties’ dispute and the parties’ arbitration.