Arbitral tribunals refer to panels of one or more arbitrators responsible for adjudicating disputes between parties. However, unlike judges sitting in national courts, whose powers are usually clearly defined under the relevant national laws and procedures, an arbitral tribunal’s jurisdiction, powers and duties are prescribed by:
(collectively referred to in this note as the “applicable legal framework”).
In an ICSID arbitration, an ad hoc Committee may be appointed to consider an application for annulment of an arbitral award pursuant to Article 52 of the ICSID Convention and Articles 50, 52-55 of the ICSID Arbitration Rules. The ad hoc Committee is distinct from the arbitral tribunal that presides over the main proceedings:
II. Arbitral tribunal's powers
In addition to adjudicating the substantive dispute, arbitral tribunals typically have the power to:1
The powers of each arbitral tribunal are not unfettered. A given arbitral tribunal will be subject to an agreed or stipulated set of powers (see also Arbitrator's Duties). Where an arbitral tribunal has acted outside the scope of its powers or jurisdiction, and/or fails to properly execute its duties, its appointment may be challenged by the parties (see also Disqualification of Arbitrator). Furthermore, the arbitral award may be at risk of being challenged, annulled or set aside (see also Annulment).
III. Constitution and composition
Commonly, and by default under the UNCITRAL Arbitration Rules2 and the ICSID Convention,3 arbitral tribunals in investment arbitrations are composed of three arbitrators. However, this position may differ under other arbitration rules that may be applicable to an investment arbitration, such as the ICC Rules and the SCC Rules.4 In any event, the State parties and/or the disputing parties are free to agree that the arbitral tribunal be composed of a sole arbitrator, or any other uneven number of arbitrators.
In constituting a three-member arbitral tribunal, each party to the dispute would typically propose or appoint one arbitrator. The third presiding arbitrator may be:
In investment arbitrations, the applicable legal framework may require the arbitral tribunal to be composed by nationals of States other than the State party to the dispute and the State(s) whose national is a party to the dispute (see e.g. Article 39 of the ICSID Convention). In addition, the applicable legal framework would require prospective arbitrators to disclose their relationships with the parties in dispute and any circumstances likely to give rise to justifiable doubts as to their impartiality or independence.5