Originally from Inherent Powers of Arbitrators

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THE EXISTENCE OF ARBITRATORS’ INHERENT POWERS

Moses describes an ‘inherent power’ as “a power not expressly provided in the arbitration agreement or in the laws and rules that govern the arbitration.” This is consistent with the ILA Report’s general description, which further explains that the “doctrine of inherent powers is invoked most often to deal not with routine matters of procedure but with challenging and unforeseen circumstances that implicate the integrity of the arbitral process itself.”

The ILA Report traces the evolution of inherent and implied powers, beginning with domestic common law courts, several centuries ago, and then moving to international courts and tribunals, where they have been characterized as the “logical corollary of the judicial nature of such organs and of their duty to ensure a sound administration of justice.”  The ILA Report considers “in what circumstances and international commercial arbitral tribunal – if not otherwise advised or constrained – might be permitted to act on the basis of its inherent or implied authority, and has sought to categorize these powers based on the function or objective that they serve to achieve.”  In summary, the ILA Report offers the following formulations of arbitrators’ inherent powers:

• powers relating to procedure (e.g., determining the seat, bifurcating proceedings, excluding evidence, permitting non-party participation);

• power to issue interim relief to protect arbitral jurisdiction;

• powers related to decision-making;

• powers to safeguard against misconduct and perceived improprieties (e.g., conduct manifesting abuse of process), in order to preserve the “integrity” of the arbitral process; and

• power to revise previous decisions.