Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 22 Good (and Bad) Initiatives of Arbitrators: Where to Draw the Line between Activism and Passivity?

Subject(s):

Jurisdiction — Arbitrators — Evidence — International courts and tribunals, decisions — International courts and tribunals, procedure

This chapter explores the power of arbitrators to take initiatives. It discusses the legal basis and sources of the arbitrators’ power to take initiatives; the exercise of the arbitrators’ discretion; and initiatives to clarify or to correct the parties’ request. It shows that arbitrators indisputably have the power to take initiatives concerning the facts and the law. They may also take initiatives in relation to defective requests presented by the parties. Some initiatives are appropriate, some are not. Ultimately, the distinction between good and bad initiatives will always imply a balancing of interests and will require the careful judgment of the arbitrators.