Originally from Inherent Powers of Arbitrators

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I. INTRODUCTION

The concept of inherent powers has received considerable attention since the early 2000s. The most recent comprehensive discussion of the concept of inherent or implied powers can be found in the Report of the ILA Committee on International Commercial Arbitration presented at the 2014 Washington ILA Conference.  The concept itself had been used in several decisions, in particular in the field of investment protection law, to justify decisions which went beyond those regularly rendered by arbitral tribunals in the course of “normal” arbitral proceedings. The paradigm example is orders rendered excluding counsel to avoid a conflict of interest for members of the tribunal.  The Committee avoided a clear definition of what is to be understood exactly under the concept but merely described the phenomenon as follows: 

Within the arbitration community there appears to be a general, albeit diffuse, understanding that arbitrators in international commercial cases – in addition to their expressly enumerated and defined powers – enjoy some measure of inherent or implied powers. Parties cannot be expected to have anticipated every possible contingency in their arbitration agreement. 

The authors of the ILA-Report recognized that the arbitration laws of many countries as well as institutional rules generally grant arbitral tribunals explicitly a “discretion over procedural questions not otherwise decided by the parties” and that such a “general grant of the discretionary powers” could be considered “as giving them the authority necessary to flesh out procedural lacunae”.