Party Control in International Arbitration

Abstract

PARTIES TO an international arbitration frequently express their concern about the lack of party control in arbitration proceedings. Parties initially choose arbitration over litigation in state courts. Parties determine the applicable law and arbitration rules, appoint co-arbitrators and participate in the selection of a chairman. Nevertheless, parties frequently feel that arbitrations take on almost a Dickensian life of their own and escape their control. This impression is reinforced when one hears arbitrators insist that they should control the arbitration to the exclusion of counsel, who they view as being out of touch with their clients.1 But the debate over who should control arbitral proceedings in the abstract is not the real issue. Party control depends first on the choice of the relevant arbitration rules and second on the stage in the arbitral proceedings. The dual issues of the choice of arbitration rules and the staged shift in control is important in dealing with the real issue regarding control, which is not who in the abstract should control arbitral proceedings, but how a party can best ensure that it does influence the proceedings at these various stages. This article seeks to deal with these two aspects within the following overall framework. Parties usually have only one chance to influence the choice of the arbitration rules — when they are agreeing to arbitrate in the first place. With respect to party control after this basic decision has been made, it may be helpful to provide a time line based on a typical arbitration under the ICC Rules2 which can readily be adapted to other types of arbitration as well. For our purposes, an ICC arbitration could be represented on a time line as shown in Figure 1. During the first stage , parties are negotiating and agreeing upon the …