The arbitral tribunal

Abstract

Introduction The first three chapters concerned fundamental issues underpinning international commercial arbitration, both substantive and procedural. The following chapters will discuss the operation of actual proceedings, from the constitution of the arbitral tribunal until the issuance of an award and the range of challenges that may be levelled against it. The present chapter examines the institution of the tribunal by reference to its distinctiveness from the courts, its discrete powers, as well as from the perspective of the legal nature of the office of arbitrator. Unlike the courts which are permanent institutions each tribunal must be constituted afresh, although as we shall see the commencement of proceedings does not coincide with the constitution of the tribunal. In the course of this chapter we shall be looking at various general and specific powers of arbitral tribunals, although the focus is on those that do not require any court assistance. Powers requiring judicial assistance for their enforcement, as is the case with interim measures, will be analysed in chapter 5 which deals with the relationship between tribunals and the courts. One of the key features of arbitral tribunals is the relationship between the parties and the arbitrators and between them and their chosen arbitral institution. This is generally of a contractual nature and determines the nature of appointments, including selection, challenges and liability of arbitrators, all of which will be examined in detail. The chapter rounds off with an analysis of substitute arbitrators and the types, range and methods of fee assessments applicable in arbitral proceedings. Are arbitral tribunals courts? Before responding to this question one should distinguish between the administration of law and justice on behalf of a state or states from the mere exercise of a judicial function in a particular instance. The first can only be undertaken by courts constituted under public laws. A mere ad hoc judicial or quasi-judicial function, however, may be undertaken by anyone enjoying sufficient capacity if the law so permits.