Originally from Carbonneau on International Arbitration: Collected Essays

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I. INTRODUCTION

This chapter explores the problems that have surfaced in arbitral procedure as a result of the evolution of the international arbitral process. The expanding role of arbitration in international dispute resolution has given rise to concerns about the propriety of present arbitral practices and to questions about the ability of the process to adapt to and fulfill its new adjudicatory mission. Should the principles that underlie arbitral procedure be reconsidered and eventually revised? In particular, do the contemporary adjudicatory demands placed upon arbitration require the process to develop more sophisticated fact-finding and discovery techniques?

The traditional gravamen of arbitral procedure—born of its contractual origins and of its operation in a primarily commercial setting1—is to have arbitral tribunals render their rulings on the basis of supple procedure and according to relatively fluid substantive standards. Moreover, under the received wisdom, arbitrating parties—despite their conflict—conserve a willingness to cooperate with each other and with the tribunal, and impliedly have agreed to abide by the dictates of good faith and basic fairness during the proceeding. In regard to fact-finding, each side is afforded a reasonable opportunity to present evidence and is expected to provide the other side with adequate notice and comply with document requests and discovery orders. Flexibility and informality-the hallmarks of arbitral adjudicatory ideology-make stringent rules of evidence unnecessary. Party cooperation and arbitrator expertise allow for the general admissibilitiy and free evaluation of evidence. When a party fails to comply or is otherwise recalcitrant, the tribunal may take the party's lack of cooperation into account in rendering the award.2