When Arbitral Power Goes Too Far: Jurisdiction, Duties and Due Process in Modern Arbitration (#1182)
Imagine an international construction arbitration concerning a major infrastructure project. The case has already been going on for months. Both parties have submitted their arguments and evidence, and the tribunal has given them a clear deadline for any further documents.
Then, suddenly, one party discovers something.
It finds a large collection of emails and technical documents which may seriously affect its case. The documents were not submitted before the deadline, so the party asks the tribunal for permission to submit them late.
The answer is no.
The tribunal has its reasons. The deadline was clear. The proceedings had already been delayed. If the documents were accepted, the other party would need time to study them and respond. Some issues that had already been argued might have to be discussed again. From the tribunal’s point of view, it is simply using its case-management powers to keep the arbitration under control.
But what if the documents could really change the result of the case?
For the party that has been refused, this is not only about a deadline anymore. It may feel that something much more important has been taken away from it: the chance to properly present its case. It may argue that the documents are essential and that refusing them has made its right to be heard almost meaningless.
And this is where things become difficult.
There is a line between managing an arbitration and going too far in controlling it. But where exactly is that line?
When does the legitimate exercise of an arbitral tribunal’s power become a violation of due process?
I think this is one of the difficult questions in modern arbitration. A tribunal cannot simply allow everything in the name of fairness. It has to control the proceedings. It must decide what evidence can be admitted, deal with delays, determine its jurisdiction and eventually bring the dispute to an end. Otherwise, arbitration may become endless, expensive and impossible to manage.
But there is another side to this.
The tribunal is not given power just for the sake of having power. Its authority comes with responsibilities. It must remain independent and impartial. The parties should be treated equally. They should have a fair opportunity to present their case and respond to the case against them. And, perhaps most importantly, the tribunal must know the limits of its own authority.
This balance is becoming even harder today. Arbitration is changing very quickly. There can be thousands of emails and electronic documents, virtual hearings involving people from different countries, complicated procedural orders and new technologies being used to organise and analyse evidence. Artificial intelligence is also starting to enter the world of arbitration, bringing new possibilities but also new questions.
All of this makes me think that the real question is not only what an arbitral tribunal can do, but how far it should go.
A tribunal may have the legal power to make a certain procedural decision. But having the power does not always mean that using it in a particular way is fair.
This article examines the jurisdiction, powers and duties of arbitral tribunals in modern arbitration. It focuses on the limits of procedural authority, and especially on the difficult moment when the tribunal’s attempt to make the arbitration efficient may instead become a restriction of due process and the parties’ right to be heard.
Powers of Arbitrators
Sources of arbitrator’s powers[1]
- Powers Conferred by the Parties
The first and most important source of an arbitral tribunal’s powers is the will of the parties themselves. Arbitration is based on consent. The parties agree to arbitration, and by doing so, they give the tribunal the authority to decide their dispute. They can also give it certain procedural powers, for example, deciding how the proceedings will be conducted, ordering the production of documents, hearing witnesses and experts, and deciding how evidence should be presented. But these powers are not unlimited. They are connected to what the parties have actually agreed to. The tribunal must therefore stay within the arbitration agreement and the matters that were submitted to arbitration. Party autonomy is, in this way, both the foundation of arbitral power and one of its first limits. A tribunal cannot normally decide a dispute, issue, or person that the parties never agreed to place before it.
- Powers Conferred by Operation of Law
The parties are the main source of the tribunal’s authority, but they are not the only source. Once an arbitration is properly constituted, the applicable law can give the tribunal additional powers and duties, even when the parties did not specifically mention them in their agreement. These can include powers concerning procedural management, interim measures, evidence, hearings, and the making of a reasoned and enforceable award. This is necessary because, in reality, the parties cannot predict every problem that may happen during an arbitration. Still, powers given by law also have limits. The tribunal must follow the requirements of that law and respect basic procedural rights. So, the tribunal is working within two connected sources of authority: the consent of the parties and the law. How these two work together is very important when we look at the limits of arbitral power and the parties’ right to due process.
Common powers of arbitral tribunals[2]
Establishment of the Procedure of the Arbitration
Unlike a national court, an arbitral tribunal is not always tied to one fixed procedure. This gives the tribunal some freedom to decide what is suitable for the particular dispute. It can set the timetable, organise the hearings, decide deadlines for submissions, control how evidence is presented and make procedural orders when something needs to be dealt with quickly. This flexibility is one of the things that makes arbitration attractive. The parties do not have to fit every dispute into the same court procedure.
on the other hand, this freedom can be seen as a problem, when not used properly. The tribunal may want to move the case forward and avoid unnecessary delays, while one of the parties may feel that it is being pushed too quickly or is not being given enough time to present its case. This is why procedural power cannot be separated from fairness. The tribunal has to manage the arbitration, but at the same time it must treat the parties equally and give each of them a real opportunity to be heard.
Determining the Applicable Law and Seat of Arbitration
The applicable law can be another difficult question. Normally the parties choose the applicable law, the tribunal will normally respect that choice. After all, the parties are the ones who agreed to arbitration in the first place. But sometimes the agreement is not clear, or the parties simply did not choose a governing law. In that situation, the tribunal need to decide which law should apply, and this decision can have a real effect on the outcome of the dispute.
The seat of arbitration is another matter that may look simple at first, but it is actually very important. The seat connects the arbitration to a particular legal system and determines which national courts can supervise the arbitration. So even when the tribunal has considerable freedom to organise the proceedings, it is not operating in a legal vacuum. There are still rules coming from the law of the seat, including some mandatory rules that the parties cannot just agree to ignore. In the end, the tribunal has freedom, but that freedom still has a boundary.
Determining the Language of the Arbitration and Document Production
The tribunal may also have the power to decide the language, or languages, of the arbitration when the parties have not agreed on this matter. This can include the language of written submissions, hearings and evidence, and whether certain documents need to be translated. Tribunals also commonly have powers concerning the production of documents relevant to the dispute. This can become very important in large commercial arbitrations, where there may be thousands of documents and emails. At the same time, the tribunal has to be careful. Decisions about language or document production should not put one party in an unfair position or make it difficult for that party to properly present its case.
Requiring the Presence of Witnesses, Administration of Oaths and Appointment of Experts
Depending on the applicable law and the arbitration rules, the tribunal may also have powers concerning witnesses and experts. It may require witnesses to attend hearings, receive witness statements and, where the law allows it, administer oaths or affirmations. The tribunal may also appoint an independent expert when the dispute involves technical, financial or scientific questions that need special knowledge. These powers can help the tribunal understand difficult issues in the case. But they have to be used carefully, especially when an expert’s opinion could have a major effect on the final decision. The parties should have a fair chance to respond to the expert’s opinion and challenge its conclusions.
Interim Measures
Arbitral tribunals may also have the power to order interim or provisional measures when these are necessary to protect a party’s rights or interests before the final award. Depending on the applicable law and arbitration rules, these measures may include preserving assets or evidence, maintaining the existing situation between the parties, preventing certain actions, or protecting the effectiveness of the final award. This power can be very important when waiting for the final award could cause serious or even irreparable harm. However, it also raises questions about the limits of arbitral authority, especially when an order affects a third party or needs the help of a national court to be enforced. Interim measures therefore show quite clearly the balance that a tribunal has to maintain between acting effectively and staying within the legal limits of its powers.[3]
Examining the Subject Matter of the Dispute
An arbitral tribunal must be able to examine the facts and legal issues that are part of the dispute. This means considering the parties’ submissions, documentary and witness evidence, expert opinions and the arguments made by both sides. The tribunal is not there simply to receive what the parties give it. It has to examine the dispute enough to reach its own independent decision. But there is an important limit to this power. The tribunal must remain within its jurisdiction and cannot decide matters that were never submitted to arbitration. Therefore, the power to examine the dispute is closely connected with the tribunal’s jurisdiction and with the limits of what the parties agreed to arbitrate.
Duties of arbitrators
Duties imposed by the parties
The parties can also place certain duties on the arbitrators through their arbitration agreement or the arbitration rules they have chosen. These duties may include keeping information confidential, acting independently and without bias, conducting the proceedings fairly, and following the procedure agreed by the parties. Once an arbitrator accepts the appointment, there is an expectation that these responsibilities will be taken seriously and followed during the arbitration.
But the parties cannot decide everything by themselves. The duties they impose on the tribunal still have to respect the mandatory rules of the applicable law and the basic principles of arbitration. In other words, party autonomy gives the parties an important role in shaping the tribunal’s duties, but it does not give them unlimited freedom to change the legal responsibilities of the arbitrators.
Duties imposed by law[4]
Duty to Act with Due Care
An arbitrator has to take the case seriously. It is not enough to just receive the documents and then give a decision. The arbitrator should read the submissions carefully, look at the evidence, and try to understand what the dispute is really about. Sometimes the case can have many documents and complicated arguments, so the tribunal has to give it the attention that it needs. Of course, nobody can be perfect, but if the arbitrator is careless in a serious way, this can affect the whole proceedings and maybe even raise questions about the validity or enforcement of the final award.
Duty to Act Promptly
Another duty of the arbitrator is to not allow the arbitration to continue for no good reason. The tribunal should deal with the case within a reasonable time and try to avoid unnecessary delays. But this does not mean that everything must be done as fast as possible. A party may need more time, or sometimes an issue cannot be understood properly without giving it more attention. This is where the tribunal has to be careful. It has to move the arbitration forward, but at the same time it should not make the parties feel that they are being rushed and not given enough time to present their case. This is especially important because arbitration is often chosen because people expect it to be more efficient than going through a long court process.
Duty to Act Judicially
The tribunal must also act judicially when it decides the dispute. Arbitrators are not judges of a national court, but in the arbitration they are performing a function that is in many ways similar to a judge. They have to listen to both sides and not take the side of one party because of personal opinions or outside pressure. Each party should have a fair chance to explain its case, submit its evidence and answer the other party. The tribunal should then consider all of this before reaching its decision. For me, acting judicially means more than just following the procedural rules. It means that the tribunal should use its powers carefully and fairly, and remember that even when it has power, there are still limits to that power.
Ethical Duties
As we have seen before the legal and procedural duties on arbitrators, We must not forget the ethical standards they must follow. An arbitrator shall act in an independent and impartial manner and avoid conflicts of interest. they also have to keep the proceedings confidential and make the necessary disclosures. An arbitrator shall also act with fairness, integrity and respect towards the parties.
The importance of these duties can be seen in the joint ICSID–UNCITRAL Code of Conduct for Arbitrators in International Investment Dispute Resolution, which aims to strengthen confidence in the independence and integrity of arbitrators. After all, the authority of a tribunal depends not only on its legal powers, but also on the people using those powers. The parties need to believe that the tribunal will act honestly, independently and fairly.
Jurisdiction
An arbitral tribunal may only validly resolve those disputes that the parties agreed that it should resolve. This rule is an inevitable and proper consequence of voluntary nature of arbitration. In consensual arbitration, the authority of the arbitral tribunal comes from the agreement of the parties. It is the parties who give it the authority to decide disputes arising between them;
Challenges to the Jurisdiction
A party may challenge the tribunal’s jurisdiction when it thinks that the tribunal does not really have the authority to decide the dispute. This can happen for different reasons. For example, the party may say that there was no valid arbitration agreement, that the agreement does not cover this particular dispute, or that the tribunal is dealing with a matter or a party that was never included in the agreement. This is a serious issue because a tribunal may have many powers during the arbitration, but all these powers depend first on having jurisdiction. If the tribunal does not have jurisdiction, it cannot simply give itself more authority because the case is already before it.
Partial Challenge and Total Challenge
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Not every jurisdictional challenge is about the whole arbitration. Sometimes a party may argue that the tribunal has no jurisdiction at all, while in another case the objection may concern only one claim, one issue or even one of the parties. This can make the question more complicated. The tribunal may have jurisdiction over most of the dispute but not over a particular part of it. So it has to look carefully at what the parties actually agreed to arbitrate, instead of assuming that having jurisdiction over the case means having jurisdiction over everything connected to it.[5]
The Autonomy of the Arbitration Clause
The arbitration clause is a little different from the other parts of the contract. Even though it is usually written inside the main contract, it is treated as a separate agreement for legal purposes. This is the idea behind the doctrine of separability. So, if one party says that the main contract is invalid, this does not automatically mean that the arbitration clause is also invalid. The tribunal can still examine whether the main contract was valid or not. This is important in practice because otherwise, a party could challenge the contract itself and, by doing so, also try to take away the arbitration agreement that gives the tribunal its jurisdiction.
Competence-Competence
The principle of competence-competence allows an arbitral tribunal to decide questions about its own jurisdiction. This can include whether there is a valid arbitration agreement and whether the dispute falls within its scope. The principle is useful because if every jurisdictional question had to go first to a national court, arbitration could lose much of its efficiency. But this does not mean that the tribunal’s decision is final in every situation. National courts can still review whether the tribunal has acted within the limits of its jurisdiction.
Limitations on Jurisdiction
The jurisdiction of an arbitral tribunal has clear limits. Normally, the tribunal cannot decide claims or issues which the parties never agreed to submit to arbitration. It also cannot extend its authority just because another matter is closely related to the dispute. Its powers may also be limited by mandatory rules of the applicable law and by the law of the seat. These limits are important because arbitral power must always have a legal source. Once the tribunal goes beyond that source, its decision may be challenged and the award itself can be placed at risk.[6]
Awards Made Without Jurisdiction
An award made without proper jurisdiction can have serious consequences. If the tribunal decides a dispute, or part of it, which was outside the arbitration agreement, the award may be challenged before a national court and, depending on the applicable law, it may be set aside or refused enforcement. This shows that jurisdiction is not just something to deal with at the beginning of the arbitration. It can affect the final result in a very direct way. For this reason, the tribunal should always remain aware of the limits of its jurisdiction during the proceedings.
Court Control
Although arbitration is meant to be an independent way of resolving disputes, arbitral tribunals do not work completely outside the control of national courts. Courts may become involved in different stages, such as the appointment of arbitrators, jurisdictional challenges, interim measures, setting aside proceedings and enforcement of awards. This supervision is important because it can prevent the tribunal from exercising powers that it does not have. But too much court intervention can also damage the independence and efficiency of arbitration. The difficult part is finding the right balance between arbitral autonomy and judicial control.
Procedural Aspects of Resolving Issues of Jurisdiction
Jurisdictional objections are not only about the legal question itself. There is also the question of how and when the objection should be dealt with. The tribunal may have to decide whether the issue can be decided first as a preliminary matter, or whether it should be considered together with the merits of the case. Sometimes jurisdiction can be decided separately. In other cases, it is closely connected to the facts of the dispute. Whatever procedure the tribunal chooses, both parties must have a fair opportunity to explain their position and respond to the other side. Even a jurisdictional decision must therefore respect due process.[7]
The Time at Which the Issue of Jurisdiction Should Be Raised
The timing of a jurisdictional objection can be almost as important as the objection itself. Under many arbitration rules and laws, a party is expected to raise the objection within a certain time and not simply wait until the arbitration is almost finished or until it receives an unfavourable award. Raising the issue early can save the parties and the tribunal a lot of time and costs if the tribunal later finds that it has no jurisdiction. But sometimes the problem with jurisdiction is not clear from the beginning and only appears later. In such cases, the tribunal has to balance procedural efficiency with the need to make sure that its final award is based on proper jurisdiction.
A respondent four method of challenging the jurisdiction
Boycott the Arbitration
A respondent may decide not to take part in the arbitration at all. This can happen when it believes that there is no valid arbitration agreement or that the tribunal clearly has no jurisdiction over the dispute. It must be noted that refusing to participate does not necessarily stop the arbitration. The tribunal may continue without the respondent and can still decide the question of its own jurisdiction under the principle of competence-competence. In fact, not participating can make it more difficult when the respondent wants to challenge the award. Under the New York Convention, however, the respondent may still have grounds to resist enforcement if there was no valid arbitration agreement or if the award went beyond what the parties agreed to arbitrate.[8]
Raise an Objection with the Arbitral Tribunal
Probably the most direct way is to raise the objection before the tribunal itself. Article 16 of the UNCITRAL Model Law allows the tribunal to decide questions about its own jurisdiction, including whether a valid arbitration agreement exists. The respondent should normally raise the objection at the proper time and not simply keep it for later as a strategy. The tribunal may decide the jurisdiction issue first, or it may decide it together with the merits if the two questions are closely connected.
Application to a National Court
In some situations, the respondent can also go to a national court and ask it to consider the jurisdictional issue. Article 16(3) of the UNCITRAL Model Law provides that where the tribunal decides, as a preliminary question, that it has jurisdiction, a party may request the competent court to decide the matter. This gives the courts a role without taking the whole arbitration away from the tribunal. It is a kind of balance: the tribunal should normally deal with its own jurisdiction, but the courts still have a role when the tribunal may have gone beyond its authority.
Attacking the Award
Sometimes the jurisdictional objection is not finally resolved during the arbitration. In that situation, the respondent may challenge the award after it is made. Depending on the applicable law, this can mean asking the court at the seat to set aside the award, or objecting to its recognition and enforcement in another country. Article 34 of the UNCITRAL Model Law allows an award to be set aside in certain cases where it decides matters outside the parties’ agreement to arbitrate. Article V(1)© of the New York Convention similarly allows enforcement to be refused where the award goes beyond the scope of that agreement.
The Combined Approach[9]
These different methods do not always have to be used separately. A respondent may object before the tribunal and, if necessary, later ask a national court to review the jurisdictional question or challenge the award. The UNCITRAL Model Law shows this in practice: the tribunal can decide its own jurisdiction, courts can review certain decisions, and jurisdiction can also become an issue again at the setting-aside or enforcement stage. So the respondent’s choice will depend on the arbitration law, the stage of the proceedings and, of course, how serious the jurisdictional problem is.
Form of Court Intervention
National courts should not normally interfere with arbitration whenever they want. Their intervention should be based on the situations allowed by the applicable arbitration law. The UNCITRAL Model Law follows this idea by giving courts specific roles in matters such as jurisdiction, interim assistance and challenges to awards. This is important because some court supervision is necessary, but too much of it can make arbitration lose one of its main advantages, which is independence from national courts. The real challenge is therefore finding the right point between arbitral autonomy and necessary judicial supervision.
International agreements on the jurisdiction of the national courts
We can see that international agreements and regional rules have already dealt with this issue. For example, the Council Regulation (EC) No 44/2001 known as Brussels I has created common rules for jurisdiction. This regulation discuss the recognition and enforcement of judgments in civil and commercial matters in the EU. we can see that this convention was replaced by Regulation (EU) No 1215/2012, known as Brussels I Recast. on the other hand at the international level, the 2005 Hague Convention on Choice of Court Agreements plays an important role in giving effect to agreements where the parties choose a national court to decide their dispute. These instruments show that, just like arbitral jurisdiction, the jurisdiction of national courts in international disputes is not completely free. It is also controlled by domestic law and international rules.
Modern challenges to arbitral power
Modern arbitration has given arbitral tribunals quite wide powers to control and manage the proceedings.
But this makes me wonder, how far should these powers actually go?
A tribunal needs to keep the arbitration moving and avoid unnecessary delays, of course. But what if this efficiency starts to affect the fairness of the case?
For example, what happens when the tribunal refuses to accept evidence because it was submitted late, even if that evidence could be important for one party?
Or when it gives a very strict timetable and the party says that it simply does not have enough time to present its case properly?
The tribunal may see this as normal case management. The party may see it in a completely different way, as a denial of its right to be heard. This is where the problem really starts. The tribunal has to control the proceedings, but it cannot forget that there are real parties behind the documents and deadlines, and that the final decision can seriously affect them.
Evidence creates another problem, maybe an even bigger one in modern arbitration. International arbitrations can contain thousands of documents, emails, expert reports and now all kinds of digital evidence. It can become almost impossible to look at everything.
So should the tribunal allow every document just because one party asks for it? Probably not.
But should it reject important evidence just because accepting it will take more time? That does not seem fair either. The tribunal has to decide what is relevant and necessary, but this is not always an easy decision. A document that looks unimportant at first may later turn out to be very important. The same problem can be seen with provisional measures. How far can a tribunal go to protect the arbitration before it starts entering into matters which should really be left to national courts? There is no single answer to this. It depends on the tribunal’s jurisdiction, the applicable law and, of course, the facts of the particular case.
Then there is the question of the arbitrator himself. Independence and impartiality have always been important, but they can become more complicated in the relatively small world of international arbitration. An arbitrator may have worked with a lawyer before, or may have been appointed by the same party several times. Maybe the arbitrator also has professional relationships with people involved in the dispute. Does this automatically mean that the arbitrator is biased? Not necessarily. But should it be disclosed? In many situations, yes. The problem is not only actual bias. Sometimes even the appearance of a connection can make a party start questioning whether the tribunal is really independent. And once that confidence is lost, it is not always easy to bring it back.
There is also another difficult situation when the same dispute, or parts of it, are being considered before different tribunals or national courts. Who should decide first? What happens if one tribunal reaches a conclusion which is completely different from another court or tribunal? These situations can become very complicated, especially in international disputes where more than one legal system may be involved.
And finally, there is technology. Artificial intelligence is already starting to enter arbitration and it may become much more important in the future. It can help lawyers and tribunals search huge amounts of documents, analyse evidence and even assist with legal research. This sounds very useful, and it probably is. But it also creates questions which we did not have to ask before. Can an arbitrator rely on an AI-generated analysis and still say that the decision was made personally and independently? What if the AI gives a wrong answer and nobody notices it? Who should be responsible for that mistake?
These questions show that the limits of arbitral power cannot remain exactly the same forever. Arbitration is changing, and the tools available to tribunals are changing with it. Tribunals may have more powers and better technology to control a case, but this should not mean that they have less responsibility. The more power a tribunal has, the more careful it should be with that power. In the end, efficiency is important, but it should never become more important than independence, equality and the basic right of each party to be properly heard.
Conclusion
Arbitral tribunals clearly need enough power to control the proceedings and bring the dispute to an end. Without these powers, arbitration could become slow, complicated and maybe even impossible to manage. But this power cannot be unlimited. It comes from the parties’ agreement and from the applicable law, and with this power also comes responsibilities. The tribunal must act independently, fairly and with due care, while respecting the parties’ right to be heard.
For me, the real question is therefore not whether tribunals should have wide powers, but how they use them. A strict procedural order may help the tribunal keep the case under control, but the same order can become unfair if it leaves a party without a real chance to present its case. In the same way, a tribunal can decide questions about its own jurisdiction, but it cannot simply create jurisdiction where the parties never gave it any.
These problems may become even more difficult as arbitration continues to change. There are more electronic documents, more complicated proceedings and now new technologies and artificial intelligence entering the process. Tribunals may have more tools than before, but having more tools also means having more responsibility.
In the end, I do not think that the legitimacy of arbitral power depends only on what a tribunal is legally able to do. It also depends on how it uses that power. When power is separated from fairness and responsibility, a tribunal can easily go too far. But when power is used together with independence, fairness and due process, arbitration can remain what it is supposed to be: an efficient way of resolving disputes without losing the basic idea of justice.TI
It always seems impossible until it’s done
[1] Nigel Blackaby, Constantine Partasides, Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration (5th edn, OUP 2009) 315–317.
[2] Nigel Blackaby, Constantine Partasides, Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration (5th edn, OUP 2009) 317–325.
[3] Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), art 47; ICSID Arbitration Rules (2022), r 47.
[4] UNCITRAL Arbitration Rules (2021), UNCITRAL Code of Conduct for Arbitrators in International Investment Dispute Resolution (2023)
[5] UNCITRAL Model Law on International Commercial Arbitration (1985, as amended in 2006), art 16.
[6] UNCITRAL Model Law on International Commercial Arbitration (1985, as amended in 2006), arts 16 and 34(2)(a)(iii).
[7] UNCITRAL Model Law on International Commercial Arbitration (1985, as amended in 2006), art 16(3).
[8] Nigel Blackaby, Constantine Partasides, Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration (5th edn, OUP 2009)355
[9] Nigel Blackaby, Constantine Partasides, Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration (5th edn, OUP 2009) 357
