Inherent powers in investment arbitration are the powers “necessary to preserve jurisdiction, maintain the integrity of proceedings, and render an enforceable award… Inherent powers will by their nature only arise for use in limited circumstances. They are to be read narrowly and used proportionately and only so far as necessary to meet the exigencies of the particular situation.”1
The doctrine of inherent powers was developed in the jurisprudence of the English common law centuries ago.2 As the concept of a substantive law independent from any particular sovereign developed, certain powers deriving from the royal prerogative were eventually recognized as inherent powers of the courts.
At international law, inherent powers were introduced in the 1976 judgment of the International Court of Justice in The Nuclear Test case, where it was noted that
the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand, to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the “inherent limitations on the exercise of the judicial function” of the Court, and to “maintain its judicial character.”3
Because inherent powers are rarely set out explicitly in the Applicable Law, commentators have opined differently on the sources of these powers:
Yet, inherent powers are implied from the grounds applicable to challenge arbitral awards, because these grounds establish a few mandatory, non-derogable powers and duties of tribunals.8 These grounds are found:
Because challenge grounds are broadly worded and promote party autonomy, inherent powers are frequently implied in practice from the more specific instructions in
For each, the tribunals must rely
The first category concerns the powers pertaining to the judicial function of investment tribunals (when these powers are not determined by the applicable instruments, or when they exist alongside express powers regulating the same issue). They include
the power pertaining to the issuing of decisions, such as
the power to Revise a decision45 (which tribunals have sometimes refused to exercise);46
the power to resolve ambiguities in its awards;47
the power to order measures concerning performance or injunction.49
The third category concerns the powers aiming at preserving the integrity of the proceedings.50 They include
the power to sanction failure to abide by tribunal-ordered disclosure;55
Bollée, S., Les pouvoirs inhérents des arbitres internationaux, in Académie de Droit International de la Haye/Hague Academy of International Law (ed.), Collected Courses of The Hague Academy of International Law - Recueil des cours, Vol. 418, Brill.
Brown, C., Inherent Powers in International Adjudication, in Romano, C.P.R., Alter, K.J. and Shany, Y. (eds.), The Oxford Handbook of International Adjudication, Oxford University Press, 2013, p. 829.
International Law Association’s Committee on International Commercial Arbitration, Conference Report Johannesburg 2016 (as 2014 with recommendations), 77th Conference (Johannesburg, South Africa, 7 - 11 August 2016).
Lauterpacht, E., ‘Partial’ judgments and the inherent jurisdiction of the International Court of Justice, in Lowe, V. and Fitzmaurice M. (eds.), Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings, Cambridge University Press, 1996, p. 465.
Paparinskis, M., Inherent Powers of ICSID Tribunals: Broad and Rightly So, in Laird, I.A. and Weiler, T.J. (eds.), Investment Treaty Arbitration and International Law, Vol. 5, JurisNet, 2012, p. 11.
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