Powers, Duties, and Jurisdiction of an Arbitral Tribunal

¹ Or, exceptionally, the law to which the parties have agreed to subject the arbitration. See Chapter 3.

² See Chapter 10, paragraphs 10.81ff.

³ See Chapter 10.

⁴ For further discussion of this subject, see Chapter 11.

⁵ For instance, under Art. 15(2) of the Arbitration Rules of the International Chamber of Commerce (ICC Rules), the ICC’s International Court of Arbitration may remove an arbitrator for not fulfilling his or her functions in accordance with the Rules or within the prescribed time limit.

⁶ For instance, under s. 24(1) of the English Arbitration Act 1996, the English court may remove an arbitrator for ‘justifiable doubts’ as to that arbitrator’s impartiality.

⁷ As far as the tribunal’s powers are concerned, the applicable law is usually the proper law of the arbitration agreement and the law of the place of arbitration. For discussion of applicable law generally, see Chapter 3.

⁸ See Chapter 2, paragraphs 2.119ff.

⁹ ICC Rules, Art. 18.1.

¹⁰ Some Latin American states, such as Colombia and Ecuador, do not follow this rule and grant to arbitrators a degree of imperium, such that they can call upon public officers to enforce their orders directly as if they were a court of law. See, e.g., s. 9 of Ecuador’s 2006 Arbitration and Mediation Law: ‘[Arbitrators] shall request the aid of public, judicial, police and administrative officers as shall be necessary without having to resort to any ordinary judge at the place where … it is necessary to adopt those measures.’ See, for a fuller description, Marchan, ‘Ecuador’, in Newman and Ong (eds) Interim Measures in International Arbitration (Juris, 2014), pp. 21ff.

¹¹ English Arbitration Act 1996, s. 38(3). The arbitral tribunal can enforce this order by dismissing the claim if it is not complied with: s. 41(6).

¹² English Arbitration Act 1996, s. 38(5).

¹³ English Arbitration Act 1996, s. 34. This power is also granted by Model Law, Art. 19(1).

¹⁴ See, e.g., New Zealand Arbitration Act 1996, s. 12; Swiss Private International Law Act 1987 (Swiss PIL), s. 183; Brazilian Arbitration Law 1996, s. 22.

¹⁵ English Arbitration Act 1996, s. 12.

¹⁶ Similar rules apply under institutional rules: see the Rules of the China International Economic and Trade Arbitration Commission (CIETAC), Art. 33(1).

¹⁷ UNCITRAL Rules, Art. 18(1).

¹⁸ UNCITRAL Rules, Art. 35(1).

¹⁹ The determination of the applicable law is addressed in detail in Chapter 3.

²⁰ UNCITRAL Rules, Art. 19(1).

²¹ See Chapter 2, paragraph 2.86.

²² The question of the production of documentary evidence is discussed in detail in Chapter 6, paragraphs 6.92ff.

²³ New French Code of Civil Procedure (as amended in 2011), art. 1467: ‘Si une partie détient un élément de preuve, le tribunal arbitral peut lui enjoindre de le produire selon les modalités qu’il détermine et au besoin à peine d’astreinte. [If a party is in possession of evidence, the arbitral tribunal may order it to be produced in a manner that the tribunal decides and if necessary under penalty for failure to do so.]’

²⁴ For more detail, see Chapter 6, paragraph 6.111.

²⁵ United States Federal Arbitration Act of 1925 (FAA), § 7, which states that arbitrators ‘may summon in writing any person to attend before them … as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case’. For an example of the use of the power and confirmation of its application to non-parties see Stolt-Nielson SA v Celanese AG 430 F.3d 567 (2nd Cir. 2005).

²⁶ See paragraph 5.35.

²⁷ Swiss PIL, s. 184(2).

²⁸ French Code of Civil Procedure, art. 1467: ‘Le tribunal arbitral peut entendre toute personne. Cette audition a lieu sans prestation de serment.’ This provision was unaltered by the 2011 French Arbitration Law.

²⁹ UAE Civil Procedure Code, art. 211(1): ‘The arbitrators shall cause the witnesses to take oath. Whoever makes a false statement before the arbitrators shall be deemed to have committed the crime of perjury.’

³⁰ In the US case In re Arbitration between International Bechtel Co. Ltd v Department of Civil Aviation of the Government of Dubai 300 F.Supp.2d 112 (DDC 2005), the US District Court for Columbia refused to enforce an award set aside in Dubai on the basis of the failure properly to administer the oath in accordance with the UAE Civil Code.

³¹ See, e.g., English Arbitration Act 1996, s. 38(5); Arbitration Rules of the International Centre for the Settlement of Investment Disputes (ICSID), r. 38(5).

³² For example, London Court of International Arbitration (LCIA) Rules, Art. 22(1)(iv); 2012 Arbitration Rules of the Permanent Court of Arbitration (PCA), Art. 27(3): the ‘arbitral tribunal may, after consultation with the parties, perform a site visit’.

³³ See IBA Rules, Art. 7 (‘Inspection’).

³⁴ For example, UNCITRAL Rules, Art. 29(1); CIETAC Rules, Art. 42(1).

³⁵ See IBA Rules, Art. 6 (‘Tribunal-appointed experts’).

³⁶ See Chapter 6, paragraphs 6.133ff.

³⁷ The details of this proposal are set out in Sachs, ‘Protocol on expert teaming: A new approach to expert evidence’, in ICCA (ed.) Arbitration Advocacy in Changing Times (Kluwer, 2011), pp. 135ff.

³⁸ One comprehensive procedure, which may be incorporated or used as a checklist, is established at IBA Rules, Art. 6.

³⁹ Similar ‘ground rules’ are established in IBA Rules, Art. 6.

⁴⁰ As the tribunal noted in Burlington Resources v Republic of Ecuador, Procedural Order No. 1 on Burlington Oriente’s Request for Provisional Measures, ICSID Case No. ARB/08/5, 29 June 2009, at [60]: ‘In the Tribunal’s view, the rights to be preserved by provisional measures are not limited to those which form the subject-matter of the dispute or substantive rights as referred to by the Respondents, but may extend to procedural rights, including the general right to the status quo and to the non-aggravation of the dispute …’

⁴¹ UNCITRAL Rules, Art. 26.

⁴² ICC Arbitration Rules, Art. 28.

⁴³ LCIA Rules, Art. 9B; Stockholm Chamber of Commerce Arbitration Rules (SCC Rules), Art. 32(4) and Appendix II, Art. 3; ICC Rules, Art. 29(1) and Appendix V, Art. 1(2); International Centre for Dispute Resolution (ICDR) Arbitration Rules, Art. 6; Singapore International Arbitration Centre (SIAC) Rules, Art. 26(2), with proceedings governed by Sch. 1.

⁴⁴ See Chapter 4, paragraphs 4.17ff for a review of the role of emergency arbitrators.

⁴⁵ For example, UNCITRAL Rules, Art. 26; LCIA Rules, Art. 25; ICDR Rules, Art. 21; ICSID Rules, r. 39.

⁴⁶ ICSID Convention, Art. 47; ICSID Rules, r. 39.

⁴⁷ In this regard, in Emilio Agustín Maffezini v Kingdom of Spain, Decision on Request for Provisional Measures, ICSID Case No. ARB/97/7, IIC 85 (2000), (2001) 16 ICSID Rev—Foreign Investment LJ 212, at [9]‌, the ICSID tribunal came to the following conclusion: ‘The Tribunal’s authority to rule on provisional measures is not less binding than that of a final award. Accordingly, for the purposes of this order, the tribunal deems the word “recommend” to be of equivalent value as the word “order”.’ See also City Oriente v Republic of Ecuador and Petroecuador, Decision on Interim Measures, ICSID Case No. ARB/06/21, IIC 309 (2007), at [52]. The case law is addressed in Kaufmann-Kohler and Antonietti, ‘Interim relief in international investment agreements’, in Yannaka-Small (ed.) Arbitration under International Investment Agreements (Oxford University Press, 2010), pp. 507–550.

⁴⁸ Perenco Ecuador Ltd v Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), Decision on Provisional Measures, ICSID Case No. ARB/08/6, IIC 375 (2009), at [74].

⁴⁹ Occidental Petroleum Corporation and Occidental Exploration and Production Co. v Republic of Ecuador, Decision on Provisional Measures, ICSID Case No. ARB/06/11, IIC 305 (2007), at [59] (emphasis original).

⁵⁰ Swiss Rules, Art. 26(3) (emphasis added):

In exceptional circumstances, the arbitral tribunal may rule on a request for interim measures by way of a preliminary order before the request has been communicated to any other party, provided that such communication is made at the latest together with the preliminary order and that the other parties are immediately granted an opportunity to be heard.

⁵¹ See van Houtte, ‘Ten reasons against a proposal for ex parte interim measures of protection in arbitration’ (2004) 20 Arb Intl 85, at 89.

⁵² Indeed, it is questionable whether any provisional or interim relief ordered by an arbitral tribunal is enforceable by state courts under the New York Convention absent specific authority, since, by definition, such decisions will not be final: see Chapter 7, paragraphs 7.19ff.

⁵³ See Chapter 1, paragraph 1.124.

⁵⁴ See, for ICSID, Libananco Holdings v Republic of Turkey, Decision on Preliminary Issues, ICSID Case No. ARB 06/8, 23 June 2008, at [59]. For UNCITRAL, see Guaracachi America, Inc. and Rurelec plc v Plurinational State of Bolivia, Procedural Order No. 14, PCA Case No. 2011-17, 11 March 2013 (Guaracachi PO14), available online at http://www.pca-cpa.org/.

⁵⁵ Commerce Group Corporation & San Sebastian Gold Mines, Inc. v Republic of El Salvador, Annulment Proceeding, Decision on El Salvador’s Application for Security for Costs, ICSID Case No. ARB/09/17, 20 September 2012, at [45].

⁵⁷ RSM Production, Inc. v Saint Lucia, Decision on Saint Lucia’s Request for Security for Costs, ICSID Case No. ARB 12/10, 12 August 2014.

⁵⁸ In a heavily debated assenting opinion, Dr Gavan Griffith went further and suggested that security for costs be ordered wherever third-party funding is involved.

⁵⁶ See Guaracachi PO14 supra, at [7]‌.

⁵⁹ See LCIA Rules, Art. 18(5) and (6), and Annex.

⁶⁰ See Chapter 7 for more details on these powers.

⁶¹ English Arbitration Act 1996, s. 42. A court can make such orders only if it is satisfied that the person to whom the tribunal’s order was directed has had sufficient time to comply.

⁶² English Arbitration Act 1996, ss 43 and 44.

⁶³ Ibid., s. 44(3).

⁶⁴ Ibid., s. 44(2)(c).

⁶⁵ Ibid., s. 43(2).

⁶⁶ This will be examined in more detail in Chapter 7.

⁶⁷ ICSID Rules, r. 6(2).

⁶⁸ Ibid., r. 13(1).

⁶⁹ Ibid., r. 15(1).

⁷⁰ Ibid., r. 16(1).

⁷¹ Ibid., r. 47(1)(i).

⁷² ICC Rules, Art. 11(2).

⁷³ Ibid., Art. 23(1).

⁷⁴ Ibid., Art. 30(1). Unless extended by the ICC’s Court under Art. 30(2), this time limit is six months.

⁷⁵ Ibid., Art. 33.

⁷⁶ English Arbitration Act 1996, s. 34.

⁷⁷ Ibid., s. 33(1)(a).

⁷⁸ Such as in writing or with reasons: see, e.g., art. 1448 of the Mexican Commercial Code and art. 1054(1) and (2) of the German Code of Civil Procedure (ZPO).

⁷⁹ As in the English case Sutcliffe v Thackrah [1974] AC 727; [1974] 1 Lloyd’s Rep 312 (HL).

⁸⁰ Arenson v Arenson [1977] AC 405; [1976] 1 Lloyd’s Rep 179 (HL).

⁸¹ The two schools are analysed in Mullerat, ‘The liability of arbitrators: A survey of current practice’, Paper presented at the IBA Commission on Arbitration, Chicago, IL, 21 September 2006.

⁸²