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Where are the arbitral tribunal’s powers derived from?

In this article we discuss various rules that the tribunal derives its powers from.

The powers of an arbitral tribunal are derived from the arbitration agreement, curial law/lex arbitri, and arbitral rules.

The Model Law (supplemented by the UNCITRAL Rules) sets out the jurisdiction and powers of the arbitral tribunal, which include the power to:

  1. determine its own competence (art 16). (The Explanatory Note makes it clear that art 16 relates to two important principles: competence-competence (kompetenz-kompetenz) and separability or autonomy of the arbitration clause. However, the power of the arbitral tribunal to rule on its own jurisdiction (that is, on the foundation, content and extent of its mandate and power) is subject to court control.)
  2. address any objections to the existence or validity of the arbitration agreement
  3. address objections that the arbitral tribunal is exceeding the scope of its authority
  4. order interim measures and preliminary order (art 17)
  5. make an order for the provision of security
  6. require disclosure of all matters relating to the grant or retention of an order
  7. decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials (art 24)
  8. appoint an expert(s) to address specific issues to be determined by the arbitral tribunal (art 26)
  9. request the assistance of a competent court in taking evidence (art 27)
  10. decide the dispute in accordance with the rules of law chosen by the parties as applicable to the substance of the dispute (art 28), and
  11. make the award (art 31).

The rules may be made by an arbitral institution (institutional arbitration) or by the parties themselves (ad hoc).

An institutional arbitration is one that is administered by a specialist arbitral institution under its own rules of arbitration. Amongst the most well-known in the ASEAN+6 region are International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC) and China International Economic and Trade Arbitration Commission (CIETAC). The rules of each arbitral institution tend to follow a broadly similar pattern. What is common to all sets of rules is that they are formulated specifically for arbitrations that are to be administered by the institution concerned and are usually incorporated into the main contract between the parties by means of an arbitration clause (often the institution’s own model clause, but with additions).

Parties to an ad hoc arbitration may establish their own rules of procedure (provided those rules treat the parties with equality and allow each party a reasonable opportunity of presenting its case). Alternatively, and more often, the parties may agree that the arbitration will be conducted without involving an arbitral institution, but according to an established set of rules, such as the UNCITRAL Arbitration Rules or the rules of an arbitral institution, which provide a sensible framework within which the tribunal and the parties may add any detailed provisions as they wish.

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International Arbitration: Process and Procedure

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