The Structure of International Arbitration Law and the Exercise of Arbitral Authority
Contemporary Asia Arbitration Journal, Vol. 8, No. 2, pp. 229-266, November 2015
38 Pages Posted: 6 Dec 2015 Last revised: 28 Sep 2017
Date Written: November 30, 2015
Existing theoretical treatments of international arbitration deal adequately with the sources of international arbitrators’ authority to resolve disputes, but tend to neglect the exercise of that authority. In what ways is arbitral decision-making constrained? Are international arbitrators obliged to exercise their authority in any particular ways? If so, what are the sources of such obligations, and how might they be enforced? This article contributes to the theoretical literature on international commercial arbitration by adding a dimension that has thus far been neglected: the structure of the legal regime that governs international arbitrations. It applies a familiar concept from Anglo-American jurisprudence, H.L.A. Hart’s typology of primary and secondary rules, to argue that international arbitration law is essentially contractarian in its structure. The article concludes by considering the implications of the contractarian structure of international arbitration law for the ways that arbitrators may and must exercise their authority.
This article is part of a broader theoretical project on the sources of and constraints on arbitral authority. It should be seen as a partial draft of a work in progress, polished up for publication. Comments are welcome.
Keywords: international arbitration, arbitral role, legal theory, general jurisprudence, HLA Hart, primary and secondary rules, theories of international arbitration
Suggested Citation: Suggested Citation