The authority of a truncated tribunal

Abstract

Does a truncated arbitral tribunal have the authority to act and to render a valid award? … A decade ago, I surveyed the problem as it had developed over the last two centuries; and as it had recently intensified in the proceedings of the Iran–United States Claims Tribunal. I concluded that: Withdrawal of an arbitrator from an international arbitral tribunal which is not authorized or approved by the tribunal is a wrong under customary international law and the general principles of law recognized and applied in the practice of international arbitration. It will generally constitute a violation of the treaty or contract constituting the tribunal, if not in terms then because the intention of the parties cannot be deemed to have authorized such withdrawal. Such a wrongful withdrawal may not, as a matter of international legal principle, debar an international arbitral tribunal from proceeding and rendering a valid award. While the precedents are not uniform, and the commentators are divided, the weight of international authority, to which the International Court of Justice has given its support, clearly favours the authority of an international arbitral tribunal from which an arbitrator has withdrawn to proceed and to render a valid award. In the last ten years, the question has received more than one answer. The Iran–United States Claims Tribunal has continued to hold that a truncated tribunal may render a valid award. However, in the case of Ivan Milutinovic PIM v. Deutsche Babcock AG , the holdings conflict.