For more information on an arbitral tribunal`s discretion in allocating costs and reviewing and dealing with precedents, please refer to the Cost Allocation and Precedent Guidelines. The applicable legal framework determines the formation and composition of arbitral tribunals. An arbitrator usually conducts arbitration proceedings or a panel (three arbitrators), each called a “tribunal”. The court is the equivalent of a judge (or panel of judges) in a court case. Permanent courts tend to have their own rules and procedures and tend to be much more formal. They also tend to be more expensive and slower for procedural reasons. [3] Arbitral tribunals often claim legitimacy for reasons that combine claims of legitimacy of arbitrators and courts. The legitimacy of arbitration derives primarily from the consent of the parties to the agreement, while the legitimacy of the courts, at least the courts within democracies, derives more broadly from social pacts and customs, including the democratic legitimacy of the state. These courts are still new and need to be monitored for evidence. The Dubai International Financial Centre (DIFC) courts, one of the oldest examples of this new wave of arbitration, have had mixed results. As Matthew Erie has documented, DIFC tribunals have ruled in favour of the government agencies that have appeared before them, but they have also ruled against quasi-state corporations.46 This example is hopeful, but does not completely mitigate skepticism – and transparency is still needed to oversee the independence of arbitration.< But as with jurisdiction, the scope of consent should limit the scope of applicability. For example, if the SICC were to use its power to join non-consenting third parties over whom the court would not otherwise have jurisdiction, foreign courts should not enforce the resulting judgment against the third party.41 However, at the intersection of public and private justice, arbitral tribunals could abuse their position by exercising jurisdiction in contexts: that go beyond what gives them legitimacy (for example, the consent of the parties) or by blocking public access. There is a significant risk that they will do both.

Like the arbitration rules, the rules of arbitral tribunals are generally flexible. Courts often have considerable discretion on issues such as whether to join third parties who have not consented to jurisdiction and whether they accede to requests by parties to keep proceedings and decisions confidential, so that proceedings are kept secret. However, the exercise of exorbitant jurisdiction and secrecy could undermine the balance between an arbitral tribunal, its perceived legitimacy and its potential for transnational law-making. According to Niti Aayog`s 2018 strategy paper, 29 million cases were pending in Indian courts, and at the time, it was said that it would take more than 324 years to catch up with the number of appointed judges. Today, the number of pending cases has increased to 44 million and there are only 21.03 million judges out of 1 million inhabitants in the country. These statistics are somewhat worrying. Faced with such a situation, people are now considering other ways to resolve disputes, and “arbitration” is one of those ways. Procedural issues are normally decided either by the law of the seat of arbitration or by the court itself, which has its own inherent jurisdiction (under national law). Procedural issues are generally as follows: In the formation of an arbitral tribunal composed of three members, each party to the dispute shall normally propose or appoint an arbitrator.

The third presiding arbitrator may be: Under section 33 of the Arbitration and Conciliation Act 1996, it is for the arbitral tribunal to correct or interpret the award made by the designated tribunal within 30 days of the date of receipt of the request. This can be done in the following two cases: The parties to the dispute are generally free to determine the number and composition of the arbitral tribunal. In some jurisdictions, an arbitration clause providing for two arbitrators (or another even number) is interpreted to mean that appointed arbitrators choose an additional arbitrator as president of the arbitral tribunal in order to avoid deadlock. Different legal systems differ as to the number of arbitrators who should form the arbitral tribunal if there is no agreement. [2] In addition to selecting neutral persons of appropriate nationality, the parties may choose important elements such as applicable law, language, and venue of arbitration. This way, they can ensure that neither party has a home advantage. In many jurisdictions, once the award is rendered, the court orders the losing party to pay the prevailing party`s legal costs, which may include the arbitrator`s fees. This does not affect the above joint and several liability, but does mean that the prevailing party may maintain a separate action against the losing party for unpaid costs or for reimbursement of arbitrator fees that the prevailing party had to pay but the losing party was ordered to pay. The issuance of an arbitral award is not only a power conferred on arbitral tribunals, but also an obligation on their part to evaluate and then decide on all information relating to the dispute. Nevertheless, arbitral tribunals are very similar to arbitration.4 Arbitral tribunals rely on the efforts of commercial courts to meet the parties` preferences in terms of speed, flexibility and expertise.5In many ways, commercial court proceedings have become increasingly privatized – through management judgments, arbitrations appended by the courts and increased control by the parties over the proceedings. Arbitral tribunals go even further.

Arbitral tribunals may employ foreign judges, allow foreign lawyers to appear before them, and allow parties to dismiss appeals. They work in English (even in non-English speaking countries). They allow the parties to choose which forum hears the dispute (regardless of the relationship of the forum State to the dispute), which procedures must be followed, whether the resulting procedure or decision must be treated confidentially, and which law governs the dispute, possibly even if the parties choose a non-State law, such as general principles of equity or rules, developed by organizations such as the United Nations Commission on International Trade Law (UNCITRAL). In accordance with the WIPO Rules of Procedure, the parties agree to implement the decision of the arbitral tribunal without delay. International arbitral awards are enforced by national courts under the New York Convention, which allows for their setting aside only in very limited circumstances. More than 165 States are parties to this Convention. Under the WIPO Rules, the parties may jointly elect a sole arbitrator. If they opt for an arbitral tribunal of three members, each party shall appoint one of the arbitrators; These two persons then agree on the chair of the arbitration. The Center may also propose potential arbitrators with the necessary expertise or directly appoint members of the arbitral tribunal. The Center maintains a long list of arbitrators, ranging from experienced dispute resolution generalists to highly specialized practitioners and experts covering the entire legal and technical spectrum of intellectual property.

Delaware provided an early and important example of arbitration. In 2009, Delaware passed legislation allowing judges of the Court of Chancery to act as arbitrators.6 In disputes involving at least one Delaware business entity, not consumers, and amounts in dispute over $1 million, the parties could agree that a judge of the Court of Chancery would arbitrate their dispute. The trial would be confidential and would take place at the Delaware Courthouse for a filing fee of $12,000 plus $6,000 for each additional hearing day. The due process and evidentiary rules would apply, but the parties could agree to change them.7 Judges could grant any remedy they deem “fair and equitable, as part of an enforceable agreement between the parties.” 8 The losing party may appeal the “order of the Court of Chancery” to the Supreme Court of Delaware, but it is subject to the review standards of the Federal Arbitration Act. Applications and arbitration awards would be confidential, but once challenged, they could become part of the public record.9 Delaware drafted the law, Chief Justice Myron Steele explained, “to maintain the competitiveness of the United States, and Delaware in particular, in the international resolution of trade disputes.” 10 The Third Judicial District thus thwarted Delaware`s attempt to create a mixture of tribunal and arbitration – what this article calls an “arbitral tribunal.” 13 In most countries, the arbitral tribunal may decide on its own jurisdiction (often referred to in international law as the “jurisdiction-competence doctrine”). Thus, the arbitral tribunal itself can decide whether: Whether this acquired legitimacy is ultimately found credible depends on the evolution of cases in these tribunals – which we can only observe if arbitral tribunals commit to transparency. Transparency is also key to whether arbitral tribunals will operate independently. If the ruling parties, pro-government parties or influential parties appear before the arbitration tribunals, will the courts remain neutral? As the saying goes, “Only time will tell.” But for the time to tell, the file cannot be shrouded in secrecy.

The other important aspect of the issues considered in this case is the doctrine of negative impact competences. The competency-competence doctrine provides that the arbitrator has the power to decide on his or her jurisdiction. The negative effect of competency-competence means that in order for the arbitrator to decide on his or her jurisdiction, the courts must not intervene unnecessarily and must refer the matter back to the arbitrator.