Powers of arbitrators in international commercial arbitration

Abstract

The aim of this study is to analyse the powers of an arbitral tribunal conducting arbitration proceedings under the UNCITRAL Model Law on International Commercial Arbitration and under the English Arbitration Act of 1996. The study rests on an accumulation of case law, current and secondary literature. The Thesis is divided into two parts of four and two chapters respectively. Chapter one lays down the foundational framework upon which the arbitral tribunal's powers are established and the basic standard of behaviour expected from a tribunal performing a juridical duty. The chapter identifies an arbitration agreement as a pillar upon which the process of international commercial arbitration rests. It discusses the essential attributes of the parties' agreement in detail and shows the effect that these have on the powers of a tribunal. It also shows how the expected standard of behaviour impacts on a tribunal's work. The study in essence shows how the parties are able to use their independent controlling power over the arbitration process to privately design their own dispute resolution mechanism.

Chapter two of the Thesis analyses the powers of an arbitral tribunal during the conduct of the arbitration proceedings. The study looks at the powers ofthe tribunal to deal with the issues in dispute between the parties and the need for it to observe the limits of its jurisdiction. The study also discusses the extent to which a tribunal is permitted by the parties to exercise procedural powers. It also shows how the parties' choice of the rules of arbitration and the procedural law influences the parties' choice of the procedure that may be adopted in an arbitration. The study in essence shows that whilst the tribunal is given the power to conduct the proceedings and resolve the dispute between the parties, the means by which the dispute is resolved remains under the control of the parties. Consequently, any procedural powers that a tribunal may exercise or any procedural assistance that it may need, requires the consent of the parties before it may be accessed. The study shows how the work of the tribunal is geared towards fulfilling the parties' wishes.

Chapter three of the Thesis looks at the power of an arbitral tribunal to make an arbitral award. The making of a final award is the ultimate task of a tribunal that also marks the end of its mandate. It is essential that the final award addresses all the contentious issues arising between the parties in finality and grants the appropriate remedies. The study also shows how the doctrine of resjudicata prevents an arbitral tribunal from revisiting an aspect of the dispute that it has dealt with in finality. An arbitral tribunal is obliged to comply with and fulfil the requirements ofthe lex arbitri when making the final award. The study shows the need for an arbitral tribunal's final award to be binding on the parties to the arbitration agreement and enforceable at law

Chapter four examines the nature of objective arbitrability and the power of an arbitral tribunal to define its own jurisdiction. The study discusses the benchmarks that are used to determine the question of objective arbitrability and how these act as a controlling feature over arbitrable issues as well as over the extent of an arbitral tribunal's jurisdiction. The chapter ends by discussing the extent to which an arbitral tribunal is permitted to investigate the extent of its jurisdiction.

Chapter five of the Thesis makes an analysis of the extent to which a court may be permitted to intervene in the arbitration process before the appointment of an arbitral tribunal and whilst the tribunal is conducting the proceedings. The study shows the two roles that the court performs at this stage ofthe proceedings. It firstly ensures that matters that parties have decided should be dealt with using the process of arbitration are sent to arbitration. Secondly, the court avails itself to rescuing the arbitration process when it is off course. In supporting the process of arbitration at this stage, the court assumes an ancillary role and therefore only deals with procedural and jurisdictional matters in a restrictive manner and not as an end in itself.

The final chapter in this study discusses the extent to which a court may intervene in the work of an arbitral tribunal after the final award. The study identifies the limited role ofthe court at this stage of the arbitration process, which may only be accessed by a party under limited grounds. After the award is made, the court supports the work of the tribunal by ensuring the recognition and enforcement of the award. It also assumes a supervisory role ofreviewing an arbitral tribunal's conduct and exercise of its powers. In both cases however, the intervention of the court is only accessible on request. Chapters five and six of the Thesis therefore go to show that court intervention is permitted in the arbitration process by the instruments under study in a systematic way that ensures that the work of the tribunal and the exercise of its powers are not disrupted. The Thesis shows that the extent of an arbitral tribunal's powers is determined by the agreement of the parties subject to the applicable laws and rules of arbitration.