Author

Ms Rachel Chiu

Associate - Bryan Cave Leighton Paisner LLP

Author

Mr Kevin Cheung

Associate in International Arbitration and Construction Disputes - Bryan Cave Leighton Paisner LLP

Editors
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Arbitral tribunal

I. Definition

1.

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:

  1. the agreement between the State parties to the relevant treaty;
  2. the agreement between the parties to the dispute;
  3. the applicable arbitration rules, e.g. the International Centre for Settlement of Investment Disputes (ISCID) Arbitration Rules or the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules; and
  4. the law of the place/seat of arbitration, or, if it is an ICSID arbitration, the ICSID Convention;

(collectively referred to in this note as the “applicable legal framework”).

2.

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:

  1. It is constituted by three members that are exclusively appointed by the Chairman of the ICSID Administrative Council, from the ICSID Panel of Arbitrators.
  2. Members of the ad hoc Committee cannot have been a member of the arbitral tribunal that rendered the award, or be of the same nationality as any of that arbitral tribunal’s members (Article 52(3) ICSID Convention).
  3. The ad-hoc Committee’s jurisdiction and decision is limited to the annulment of the arbitral award in whole or in part, or rejection of the annulment application.

II. Arbitral tribunal's powers

3.

In addition to adjudicating the substantive dispute, arbitral tribunals typically have the power to:1

  1. consider and determine the tribunal’s own jurisdiction and competence (e.g. Article 21 of the UNCITRAL Arbitration Rules & Article 41(1) of the ICSID Convention);
  2. determine and establish the arbitral procedure (e.g. Article 17(1) of the UNCITRAL Arbitration Rules & Article 44 of the ICSID Convention);
  3. determine the applicable law and seat of the arbitration (e.g. Articles 18(1) and 35(1) of the UNCITRAL Arbitration Rules);
  4. determine the language of the arbitration (e.g. Article 19(1) of the UNCITRAL Arbitration Rules);
  5. order the production of documents (e.g. Article 24(3) of the UNCITRAL Arbitration Rules & Article 43(a) of the ICSID Convention); and
  6. issue or recommend interim or provisional measures during the course of the arbitration (e.g. Article 26 of the UNCITRAL Arbitration Rules & Article 47 of the ICSID Convention).
4.

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).

5.

For further discussion on an arbitral tribunal’s discretion in the Allocation of Costs and their consideration and treatment of Precedents, please see the Allocation of Costs and Precedent notes.

III. Constitution and composition

6.

The applicable legal framework determines the constitution and composition of arbitral tribunals.

7.

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.

8.

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:

  1. jointly chosen by the two party-appointed arbitrators (see e.g. Article 9(1) of the UNCITRAL Arbitration Rules);
  2. jointly proposed or appointed by the parties in dispute (see e.g. Rule 3(1) of the ICSID Arbitration Rules); or
  3. appointed by the administering arbitral institution or the relevant appointing authority.
9.

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

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