Power shift in international commercial arbitration proceedings

• Author: Emilia Onyema
• Position: BL (Nig), LLM (Lond), MCIArb, Solicitor (England and Wales) PWC Research and Teaching Fellow, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary College, University of London
• Pages: 62-77

POWER SHIFT IN INTERNATIONAL

COMMERCIAL ARBITRATION

PROCEEDINGS

EMILIA ONYEMA*

INTRODUCTION

There appears to be a gradual shift of procedural power from disputing

parties to the arbitral tribunal, in international commercial arbitration

proceedings. This shift may have occurred because of a perceived need to

empower the arbitral tribunal early on in the proceedings, for better case

management, with implications for speed and cost.1 This article examines the

shift in procedural power and gives an insight into its probable causes.

A close examination of various arbitration laws and institutional arbitration

rules shows great empowerment of the international arbitrator.2 Here, the

rights and powers (and their sources) granted to and exercisable by the main

participants in international commercial arbitration are identified. The article

also explores the movement and balance of

[these]

rights and powers, between

the arbitral tribunal, the disputing parties and arbitration institutions. It also

identifies the controller of the different stages of the arbitral process. Finally,

the article posits that, in current arbitral practice, control over the conduct of

proceedings is with the international arbitrator.3

*BL

(Nig), LLM (Lond), MCIArb, Solicitor (England and Wales) PWC Research and Teaching

Fellow, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary

College, University of London. Email: n.e.onyema@qmul.ac.uk.

I acknowledge the comments made by Mr. Dimitrios Athanasakis on an earlier draft. However, all

errors are mine

1 David Hacking, "The Effective Arbitrator", 1 Int ALR. 237 (1998) asserts that the timely revision

of the rules of the AAA, ICC and LCIA "have all given greater focus on the arbitrator taking an active

role for the efficient conduct of the arbitration."

2 See David Hacking,

ibid,

where he gave an account of this empowerment.

3 Thomas H Webster in "Party Control in International Arbitration" 19(2) Arb Int 119 (2003)

argues for parties to retain control.

Outline

This article raises and answers two primary questions. The first question

examined in section A, concerns the main participants (and their role) in the

international arbitral process. The second question concerns the main powers/

rights which may be exercised by the main participants and is examined in

section B. The article identifies and analyses the sources of rights and powers,

by describing a standard institutional arbitration procedure, involving the

main participants, in international arbitration. The article concludes with an

assertion that the international arbitrator currently enjoys (and rightly so)

more powers over the arbitral process than ever before.4

A Main Participants

The main participants discussed in this article are the disputing parties,

arbitrators and arbitration institutions.5 The arbitral process revolves around

the disputing parries. The parries become involved when they exercise the

power conferred on them by law to opt out of litigation into consensual

arbitration under an arbitration agreement- The conclusion of the arbitration

agreement is a prerequisite to the arbitral process. Every other participant

becomes involved in the arbitral process to fulfil the essence of the arbitration

agreement.

In ad hoc proceedings, once a dispute covered by the arbitration agreement

arises,

the disputing parties form the arbitral tribunal by appointing

arbitrator(s). The disputing parties make an offer to the proposed arbitrator

who,

upon acceptance, is appointed by the parties to make a final and binding

decision over their dispute, for a fee.6 It is generally accepted that the

relationship between the arbitrators and the disputing parties is contractual

4 Professor Julian Lew in a Lecture titled "Autonomy for International Arbitration Procedure" in the

Sir Roy Goode Lecture series (13 March 2004) claimed that it is the 'ditty and

responsibility

of the

arbitrator to decide the procedure where the parties have not.

5 These are the participants directly involved in the arbitral process. There are other participants who

assist the process bur are nor directly involved in its outcome. These include the advisers to the

parties, the tribunal secretary, wirnesses of fact and opinion, transcribers, inrtrpreiers and

stenographers.

6 See, generally, Klaus Lionnet, "The Arbitrator's Contract", 15(2) Arb Int. 161 (1999); PMM Lanc,

"The Appointment of an Arbitrator - Contract or Status", 3 ADRLJ 91; Emmanuel Gaillard and

John Savage (eds) Foucthurd, Gaillurd and Goldman on International Commercial Arbitration from

para. 1103 (Kluwer Law Int'l, 1999); Patrik Scholdstrom. The Arbitrator's Mandate (Flanders

Gotab, 1998); Rubino-Sammarcano Mauro, international Arbitration Law & Practice, from p307

(2nd edn, Kluwer Law Int'l 2001); lew JDM, Mistelis LA and Kroll SM, Comparative Internatianal

Commercial

Arbitration, p 71-97 (Kluwer Law Int'l 2003)