Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 21 Inherent and Implied Powers of Arbitrators
Margaret L Moses
From: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators
Edited By: Julio César Betancourt
- Jurisdiction — Arbitrators — Evidence — International courts and tribunals, decisions — International courts and tribunals, procedure
The powers of arbitrators in international commercial arbitration are based on the agreement of the parties, usually set forth in an arbitration clause contained in a contract between the parties or in a separate agreement to arbitrate. Increasingly, however, arbitrators are exercising powers that are not derived specifically from a party agreement, but rather may be implied or inherent. The terms ‘implied’ and ‘inherent’ are frequently used rather loosely, and sometimes interchangeably. This chapter develops a framework for understanding and using the terms, so that parties, arbitrators, and courts can employ common meanings and concepts when considering arbitral powers. Implied and inherent powers, properly exercised, can help ensure that the arbitral process fulfils its promise of providing a fair, ethical, and reasonable way to resolve disputes.