Inherent Powers of Arbitrators
Arbitrators derive their powers from an agreement between contracting parties or the law of the place of arbitration. However, because even the most complete arbitration agreements, arbitration rules or laws cannot cover every situation an arbitrator may face in carrying out his or her duties, arbitrators increasingly have exercised powers not expressly conferred by these two sources. These powers are usually referred to as “implied” or “inherent.” The concept of such powers has allowed tribunals to arrive at unprecedented decisions on such matters as security for costs, disclosure of third-party funders, motions for reconsideration, even as there has been a contrary shift towards more elaborate rules of adjudication, more codes of conduct for decision-makers and a higher level of scrutiny of decisions. The tension between these tendencies illuminates the complexity of a question that extends to the heart of the arbitrator’s very ability to act and the fate of the arbitral award. Deepened by the commentary of Prof. Diego P. Fernandez Arroyo, Inherent Powers of Arbitrators offers multiple perspectives on this important debate and valuable insight into these diverging trends.
EDITORS’ NOTE
ABOUT THE EDITORS
ABOUT THE CONTRIBUTORS
Chapter 1 - Sources of Inherent Powers
Andrea K. Bjorklund and Jonathan Brosseau
Chapter 2 - Inherent Powers of Arbitrators and Interim Measures
Andrea Carlevaris
Chapter 3 - Inherent Power of Arbitrators to Exclude Counsel?
Monique Sasson
Chapter 4 - Inherent Powers to Sanction Party Conduct
Maxi Scherer
Chapter 5 - Inherent Powers of Arbitrators to Deal with “Guerrilla Tactics”
Daniel Haue Jakobsson
Chapter 6 - Arbitral Tribunals’ Inherent Powers in Corruption Matters
Jeremy K. Sharpe
Chapter 7 - Inherent Powers: Disclosure of Third Party Funders
Laurence Shore
Chapter 8 - Developing Equipoise between Party-Autonomy and the Inherent Power of Arbitrator Discretion in the Gathering of Evidence in International Arbitration
Pedro J. Martínez-Fraga
Chapter 9 - Inherent Powers to Streamline the Proceedings
Inka Hanefeld and Aaron de Jong
Chapter 10 - Applying the Rules Governing the Merits in International Commercial Arbitration
Luca G. Radicati di Brozolo
Chapter 11 - Inherent Powers and Competition Law
Giuditta Cordero-Moss
Chapter 12 - The Use of Inherent Powers by Arbitrators to Protect the Public at Large
Hattie Middleditch
Chapter 13 - Inherent and Implied Powers of the Arbitral Tribunal in Connection with Cost-Related Decisions
Stefan Kröll
Chapter 14 - The Inherent Powers of International Adjudicators to Reconsider and Revise Their Decisions
Friedrich Rosenfeld
INDEX
About the Editors:
Franco Ferrari is a Professor of Law and the Director of the Center for Transnational Litigation, Arbitration and Commercial Law at New York University School of Law. Prof. Ferrari joined NYU on a full-time basis in September 2010, after serving as visiting professor for various years. Previously, he was chaired professor of comparative law at Tilburg University in the Netherlands and Bologna University as well as professor of international law at Verona University in Italy. After serving as member of the Italian Delegation to various sessions of the United Nations Commission on International Trade Law (UNCITRAL) from 1995 to 2000, he served as Legal Officer at the United Nations Office of Legal Affairs, International Trade Law Branch (2000-2002), with responsibility for numerous projects, including the preparation of the UNCITRAL Digest on Applications of the UN Sales Convention (2004 edition). Prof. Ferrari has published more than 280 law review articles in various languages and 18 books in the areas of international commercial law, conflict of laws, comparative law and international commercial arbitration. He is a member of the editorial board of various peer reviewed European law journals (Internationales Handelsrecht, European Review of Private Law, Contratto e impresa, Contratto e impresa/Europa, Revue de droit des affaires internationales). He also acts as arbitrator both in international commercial arbitrations and investment arbitrations.
Dr. Friedrich Jakob Rosenfeld is a Partner with the arbitration boutique Hanefeld Rechtsanwälte in Hamburg, Germany. He acts as counsel and arbitrator in international arbitral proceedings. Dr. Rosenfeld is also Global Adjunct Professor at New York University (Paris program), Visiting Professor at the International Hellenic University in Thessaloniki and Lecturer at Bucerius Law School in Hamburg. In 2014, he was appointed Global Hauser Fellow from Practice & Government at NYU School of Law. Prior to joining his current firm, Dr. Rosenfeld worked as consultant for the United Nations Assistance to the Khmer Rouge Trials in Cambodia. Dr. Rosenfeld studied at Bucerius Law School in Hamburg and Columbia Law School in New York. He holds a PhD in international law (summa cum laude).
Contributors Include:
Andrea K. Bjorklund
Jonathan Brosseau
Andrea Carlevaris
Giuditta Cordero-Moss
Aaron de Jong
Inka Hanefeld
Daniel Haue Jakobsson
Stefan Kröll
Pedro J. Martínez-Fraga
Hattie Middleditch
Luca G. Radicati di Brozolo
Monique Sasson
Maxi Scherer
Jeremy K. Sharpe
Laurence Shore
About the Editors:
Franco Ferrari is a Professor of Law and the Director of the Center for Transnational Litigation, Arbitration and Commercial Law at New York University School of Law. Prof. Ferrari joined NYU on a full-time basis in September 2010, after serving as visiting professor for various years. Previously, he was chaired professor of comparative law at Tilburg University in the Netherlands and Bologna University as well as professor of international law at Verona University in Italy. After serving as member of the Italian Delegation to various sessions of the United Nations Commission on International Trade Law (UNCITRAL) from 1995 to 2000, he served as Legal Officer at the United Nations Office of Legal Affairs, International Trade Law Branch (2000-2002), with responsibility for numerous projects, including the preparation of the UNCITRAL Digest on Applications of the UN Sales Convention (2004 edition). Prof. Ferrari has published more than 280 law review articles in various languages and 18 books in the areas of international commercial law, conflict of laws, comparative law and international commercial arbitration. He is a member of the editorial board of various peer reviewed European law journals (Internationales Handelsrecht, European Review of Private Law, Contratto e impresa, Contratto e impresa/Europa, Revue de droit des affaires internationales). He also acts as arbitrator both in international commercial arbitrations and investment arbitrations.
Dr. Friedrich Jakob Rosenfeld is a Partner with the arbitration boutique Hanefeld Rechtsanwälte in Hamburg, Germany. He acts as counsel and arbitrator in international arbitral proceedings. Dr. Rosenfeld is also Global Adjunct Professor at New York University (Paris program), Visiting Professor at the International Hellenic University in Thessaloniki and Lecturer at Bucerius Law School in Hamburg. In 2014, he was appointed Global Hauser Fellow from Practice & Government at NYU School of Law. Prior to joining his current firm, Dr. Rosenfeld worked as consultant for the United Nations Assistance to the Khmer Rouge Trials in Cambodia. Dr. Rosenfeld studied at Bucerius Law School in Hamburg and Columbia Law School in New York. He holds a PhD in international law (summa cum laude).
Contributors Include:
Andrea K. Bjorklund
Jonathan Brosseau
Andrea Carlevaris
Giuditta Cordero-Moss
Aaron de Jong
Inka Hanefeld
Daniel Haue Jakobsson
Stefan Kröll
Pedro J. Martínez-Fraga
Hattie Middleditch
Luca G. Radicati di Brozolo
Monique Sasson
Maxi Scherer
Jeremy K. Sharpe
Laurence Shore
EDITORS’ NOTE
ABOUT THE EDITORS
ABOUT THE CONTRIBUTORS
Chapter 1 - Sources of Inherent Powers
Andrea K. Bjorklund and Jonathan Brosseau
Chapter 2 - Inherent Powers of Arbitrators and Interim Measures
Andrea Carlevaris
Chapter 3 - Inherent Power of Arbitrators to Exclude Counsel?
Monique Sasson
Chapter 4 - Inherent Powers to Sanction Party Conduct
Maxi Scherer
Chapter 5 - Inherent Powers of Arbitrators to Deal with “Guerrilla Tactics”
Daniel Haue Jakobsson
Chapter 6 - Arbitral Tribunals’ Inherent Powers in Corruption Matters
Jeremy K. Sharpe
Chapter 7 - Inherent Powers: Disclosure of Third Party Funders
Laurence Shore
Chapter 8 - Developing Equipoise between Party-Autonomy and the Inherent Power of Arbitrator Discretion in the Gathering of Evidence in International Arbitration
Pedro J. Martínez-Fraga
Chapter 9 - Inherent Powers to Streamline the Proceedings
Inka Hanefeld and Aaron de Jong
Chapter 10 - Applying the Rules Governing the Merits in International Commercial Arbitration
Luca G. Radicati di Brozolo
Chapter 11 - Inherent Powers and Competition Law
Giuditta Cordero-Moss
Chapter 12 - The Use of Inherent Powers by Arbitrators to Protect the Public at Large
Hattie Middleditch
Chapter 13 - Inherent and Implied Powers of the Arbitral Tribunal in Connection with Cost-Related Decisions
Stefan Kröll
Chapter 14 - The Inherent Powers of International Adjudicators to Reconsider and Revise Their Decisions
Friedrich Rosenfeld
INDEX