Author: Hans Smit*
Published: December 1994
Authority of the Arbitral Tribunal
Arbitrators and Arbitral Tribunals
Description: International arbitration may take many forms. It may be conducted on an ad hoc basis, without the benefit of institutional guidance and assistance. Ad hoc arbitration remains the exception, although, since the adoption of the UNCITRAL Rules, it occurs more frequently. Most international arbitrations are conducted under institutional auspices. The ICC International Court of Arbitration continues to be the most prominent international arbitration institution. It is also the institution that inserts itself to the greatest extent into the actual arbitration proceedings. It provides for its prima facie determination of the tribunal’s competence, for the exchange of the initial pleadings before it, and for its ruling on the appointment and challenge of arbitrators before the case is submitted to the tribunal. And, after the tribunal has started functioning, it requires submission of the terms of reference to it, as well as submission of the award for approval as to form. It also determines the fees to be paid to the arbitrators.
The role of other institutions is usually less invasive. For example, the American Arbitration Association does not make any preliminary determination on competence, requires no terms of reference, does not review the award, and leaves the determination of the arbitrators’ fees to the arbitrators. The World Intellectual Property Organization now proposes its own rules, which are heavily influenced by the UNCITRAL and AAA International Arbitration Rules and follow the pattern of those Rules.
A person contemplating arbitration must therefore consider carefully what form of arbitration to select. No effort will be made here to analyze the differences between the various forms of arbitration. It must be stressed, however, that the extent to which the comments that follow are pertinent may depend on the particular arbitration rules that govern the process. Furthermore, these comments do not purport to be exhaustive. They relate only to a selection of problems that are likely to arise in the course of an international arbitration.
*Director, Parker School of Foreign and Comparative Law, Columbia University, New York, New York.