Originally from Inherent Powers of Arbitrators

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INTRODUCTION

In September 1984, the Full Tribunal of the Iran-United States Claims Tribunal (“IUSCT”) was scheduled to meet in an administrative session when a dramatic incident occurred that appeared to be unprecedented in the history of international arbitration. An ongoing feud within the Tribunal ended with the two Iranian members grabbing and beating their Swedish colleague until the police rushed in to rescue the 69-year-old arbitrator. One of the Iranian members even reportedly threatened to kill that same arbitrator two days later.  The procedure to follow in these circumstances was, perhaps unsurprisingly, envisaged by no single provision of the Algiers Declarations or the Tribunal Rules.  But this in no way prevented the President of the IUSCT from acting. He immediately canceled all further proceedings, relying on the “the powers inherent in the office of the President.” 

This anecdote illustrates themes central to this chapter. One is that international courts and tribunals have typically referred to, and relied on, inherent powers when unexpected and unusual issues not directly addressed by their constitutive instruments and procedural rules have arisen,  especially in nascent fields of international law.  Another theme that this anecdote brings to light is that adjudicative bodies have rarely attempted to define these powers and to map out their sources.  While commentators have debated various approaches to these issues,  there remain significant uncertainty and confusion in practice about the content and legal basis of inherent powers.

This chapter takes part in a debate about the sources of inherent powers that has been particularly vibrant since the early 2000s. It also seeks to engage with the scope of inherent powers, but only insofar as it relates to the very existence—and not the limitations or boundaries—of these powers.