Inherent Powers to Sanction Party Conduct

Abstract

Much ink has been spilled on the question how arbitral tribunals should deal with parties' misconduct. One controversial issue is whether, and to what extent, arbitral tribunals have the power to sanction such conduct. While some are in favor of providing broad powers to arbitral tribunals to sanction improper conduct by parties or their representatives, others speak out against the so-called policing powers of arbitral tribunals. In this context, some authors point to the greater need today for arbitrators to exercise inherent powers to deal with ethical issues. The use of inherent powers touches multiple aspects of international arbitration proceedings. However, when it comes to sanction party conduct, this paper submits that there is little room for inherent powers. Part II of the paper defines the concepts underlying the idea of inherent powers to sanction party conduct, and Part III provides a critical assessment. The paper concludes that, properly defined and assessed, the conceptual space for inherent powers is limited.

Keywords: international law, arbitration, party misconduct, tribunal powers, inherent powers, ethics, guerilla tactics