This chapter studies Article 39 of the ICDR Rules. Article 39 provides a bright-line rule that seeks to clarify when the arbitrators, as opposed to the institution, are responsible for interpreting and applying the ICDR Rules: to the extent that a rule impacts on the tribunal’s powers and duties, then the tribunal is charged with its application; in all other cases, this duty falls on the ICDR. Practically speaking, however, given the ICDR’s extensive experience with applying the rules, arbitrators typically will consult with the institution before making such an interpretation. Article 39 is substantially the same as its predecessor in Article 36 of the 2009 ICDR Rules. The only notable revision is that the provision now expressly provides that any emergency arbitrator or consolidation arbitrator will have the same authority as the arbitral tribunal to interpret and apply the Rules.
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