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CHAPTER 5 – POWERS, DUTUES AND JURISDICTION OF AN
ARBITAL TRIBUNAL
Introduction
Judges sit in a legal environment that clearly defines the extent
of their powers and duties. They are generally given full
immunity in respect of any potential liability arising out of the
conduct of their judicial function
Powers, duties, and jurisdiction of an arbitral tribunal arise from
a complex mixture of the will of the parties, the law governing
the arbitration agreement, the law of the place of arbitration,
and the law of the place in which recognition or enforcement
of the award may be sought.
Powers of Arbitrators
The powers of an arbitral tribunal are those conferred upon it
by the parties within the limits allowed by the applicable law,
together with any additional powers that may be conferred
automatically by operation of law. These powers are
established to enable the arbitral tribunal to
carry out its task properly and effectively.
• Sources of Arbitrators Powers
1. Conferred by the Parties
parties may confer powers upon the arbitral tribunal directly
or indirectly, but only within the limits of the applicable law.
Any excess of power (that is, any power granted over and above
that allowed by the applicable law) is invalid, even if it is
contained in international or institutional rules of arbitration.
‘direct’ conferment of powers takes place when the parties
agree expressly upon the powers that they wish the arbitrators
to exercise, possibly by setting them out in the terms of
appointment or a submission agreement.
‘indirect’ conferment of powers takes place when the parties
have agreed that the
arbitration is to be conducted according to pre-established
rules of arbitration
2. Conferred by Operation of law
many systems of law supplement the powers of arbitral
tribunals by:
• giving powers directly to arbitral tribunals;
• authorising national courts to exercise powers on behalf of
arbitral tribunals or the parties themselves; or
• a combination of these two methods.
It is consequently not enough simply to refer to the arbitration
agreement (including any
institutional or international rules that may be incorporated
within that agreement) in order to determine the powers of the
arbitral tribunal; any relevant mandatory provisions of the law
governing the arbitration agreement, and of the law governing
the arbitration, must also be taken into account. These
By: Atty. Anna De Jesus (Philippines)

provisions usually extend the powers conferred by the parties.
In some circumstances, they may restrict.
the best approach when considering the powers of an arbitral
tribunal is to 1) look first at the arbitration agreement (including
any applicable rules), then at the 2) law governing the
arbitration agreement, and finally 3) at the law governing the
arbitration (if different).
Common powers of arbitral tribunals
Ø Article 17(1) of the UNCITRAL Rules contain a general power
for the arbitral tribunal to ‘conduct the arbitration in such
manner as it considers appropriate, provided that the
parties are treated with equality and that at an appropriate
stage of the proceedings, each party is given a reasonable
opportunity of presenting its case’.
1. Determining the applicable law and seat
2. Determining the applicable law and seat
3. Determining the language of the arbitration
4. Requiring the production of documents
In the event that the requested party does not produce the
ordered documents, the tribunal has no power (imperium) to
force production, law of the place of arbitration may provide
supplementary state powers to assist the tribunal.
5. Requiring the presence of witnesses/subpoenas
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if such a witness fails to appear, the arbitral tribunal is usually
limited to drawing adverse inferences from the party’s failure
to secure the presence of the witness. The tribunal’s powers
may be supplemented by the law governing the proceedings
(lex arbitri) by providing judicial support to the enforceability of
orders.
6. Administrating oaths
The tribunal usually has this power under relevant institutional
rules or national laws.
7. Examining the subject matter of the dispute
8. Appointing experts
9. Interim measures
to preserve evidence, to protect assets, to respect
procedural rights, and otherwise to maintain the status quo
pending the outcome of the arbitration proceedings
• key elements to take into account are:
1. the risk of irreparable harm, if the order is not
granted;
2. that the harm to the requesting party, if the order is
not granted, will be greater than the harm to the
other party if it is granted (the balance of
convenience’ test); and
3. that the requesting party has a reasonable chance of
success on the merits
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10. Emergency Arbitrator
Article 17 of the Model Law ‘[u] nless otherwise agreed by the
parties, the arbitral
tribunal may, at the request of a party, grant interim measures’.
Institutional rules sometimes authorise the tribunal to grant ex
parte interim measures under ‘exceptional circumstances’,
subject to the opposing party’s right to be heard later. - Article
17B of the revised UNCITRAL Model Law provides for
emergency relief in the form of a ‘preliminary order’.
An order for preliminary relief is subject to
a twenty-day time-limit, pursuant to Article 17C(4), and the
same conditions apply as for interim measures. Within that
twenty-day period, an application may be made to the arbitral
tribunal, on notice to the other party, to adopt or vary the
preliminary order. a preliminary order may be granted on an ex
parte basis if the arbitrator decides that disclosure of the
request for interim relief would frustrate the purpose of the
measure (for example because the opposing party might seek
to hide or remove relevant assets).
Article 17C(5) provides that a preliminary order of emergency
relief, whilst binding on the parties, is not enforceable by a
court
11. Security for costs
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special form of interim relief, to which the criteria outlined so
far do not apply. Instead, the tribunal must weigh the costs to
a respondent of defending a claim in which there is a possibility
of not recovering those costs even if successful against the risk
of stifling a genuine claim by a claimant who is short of funds.
12. Power to Sanction counsel
Supporting power of the Courts - the power to order
depositions, the power to subpoena witnesses present in the
jurisdiction to give evidence or to produce documents, and the
power to order production of documents sought by a party to
an arbitration with a foreign seat …. range of powers, whether
exercised directly by the arbitral tribunal itself or indirectly by
application to the courts, provides the support from national
legal systems that international arbitration requires to achieve
its purpose.
Duties of Arbitrators
1. Imposed by Parties
may be done before the arbitrators are appointed, or during
the course of the arbitration, or both.
arbitrator should check the agreement before accepting the
appointment, in case it imposes unreasonable duties or duties
that are incapable of fulfilment.
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Conducted under specific rules, those rules usually impose
particular duties on the arbitral tribunal in addition to any
imposed by the parties
2. Imposed by Law
(a) Duty to act with due care
• Contract approach
• status school’ is based on the performance by
arbitrators of a judicial or quasi-judicial function,
Arbitral Immunity – The IBA 1987 Rules of Ethics for
International Arbitrators states that ‘international arbitrators
should in principle be granted immunity from suit under nationa
llaws, except in extreme cases of wilful or reckless disregard of
their legal obligations’
The basis for immunity of arbitral institutions in common law
jurisdictions is different from
that relating to arbitrators. It is based on the fact that they
operate as quasi-judicial organisations.
Institutional rules usually provide for the institution’s immunity
in relation to any act or omission in connection with the
arbitration, subject to applicable law.
(b) Duty to act promptly
Justice delayed is justice denied
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Some systems of law endeavour to ensure that an arbitration is
carried out with reasonable speed by setting a time limit within
which the arbitral tribunal must
make its award.
If an award is not made within the time allowed, the authority
of the arbitral tribunal terminates, and the award will be null
and void.
Delay in the conduct of an arbitration may have serious
financial consequences; agreement. Liability might, however,
be established on the basis of the contractual duty of care, in
those jurisdictions in which the arbitrator does not benefit from
immunity.
ICC Rules now require the tribunal and the parties to ‘make
every effort’ to ‘conduct the arbitration in an expeditious and
cost-effective manner’.
(c) Duty to Act Judicially
Neither the arbitral tribunal as a whole nor any of its individual
members should, for instance, discuss the case with one party
in the absence of the other, unless in connection with the
nomination of the president of the arbitral tribunal (where this
has been agreed), or if the absent party has failed to attend a
meeting or a hearing, having been given proper notice to do so.
At the hearing, the duty to act judicially means that each party
must beaccorded equality of treatment and given a fair
opportunity to present its case.
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Article 17 of the UNCITRAL Rules provides that the arbitral
tribunal may conduct the arbitration in such a manner as it
considers appropriate ‘provided that the parties are treated
with equality and that at an appropriate stage of the
proceedings each party is given a reasonable opportunity of
presenting its case’
English law is clear in this respect: a tribunal must give the
parties an opportunity to be
heard. If it fails to do so, then the duty to act judicially will have
been infringed.
Where a tribunal fails in its duty to act judicially, the immediate
sanction is for it to be removed.
3. Ethical Duties
IBA Guidelines on Conflicts of Interest in International
Arbitration
If an arbitrator has grounds for suspecting a criminal offence,
each party should be given an opportunity to provide an
explanation. Once the tribunal believes it has sufficient
justification, it can then evaluate the facts. In cases of fraud or
corruption, this is likely to have an impact on the outcome of
the dispute. In cases of money laundering or other
manipulation of the process by the parties, the tribunal should
terminate the proceedings on the basis that there is no genuine
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dispute. In cases of a consent award, the tribunal may issue a
ruling refusing to approve the settlement.
One of the ethical duties of an arbitrator is to decide fairly in
the absence of any corruption or bribe.
Case: World Duty Free v Kenya
“In light of domestic laws and international conventions
relating to corruption, and in light of the decisions taken in this
matter by courts and arbitral tribunals, this Tribunal is
convinced that bribery is contrary to international public policy
of most, if not all, States, or, to use another formula, to
transnational public policy. Thus, claim based on contracts of
corruption or on contracts obtained by corruption cannot be
upheld by this Arbitral Tribunal.”
Jurisdiction
It is the parties who give to a private tribunal the authority to
decide disputes between them.
The arbitral tribunal must take care to stay within the terms of
its mandate. The It is the parties who give to a private tribunal
the authority to decide disputes between them, and the arbitral
tribunal must take care to stay within the terms of its mandate.
a) Challenges to Jurisdiction
Partial Challenge Total Challenge
raises the question of questions the whole
whether certain (but not basis upon which the
By: Atty. Anna De Jesus (Philippines)
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all) of the claims or arbitral tribunal is acting also constitutes the necessary agreement of the parties that
counter-claims that have or purporting to act any disputes between them (even concerning the validity or
been submitted to the termination of the contract in which it is contained) should be
arbitral tribunal are within referred to arbitration. In this way, it provides a legal basis for
its jurisdiction. the appointment of an arbitral tribunal.
Does not amount to a usually questions
fundamental attack on the whether there is a Case: Fiona Trust & Holding Corporation and ors v Privalov and
jurisdiction of the arbitral valid arbitration ors.
tribunal agreement at all.
“The principle of separability means that the invalidity or
Lack of jurisdiction in this grounds for a challenge rescission of the main contract does not necessarily entail the
sense may be cured by to jurisdiction are often invalidity or rescission of the arbitration agreement: the
agreement of the parties. related to the basic arbitration agreement must be treated as a distinct agreement
elements of and can be void or voidable only on grounds that relate directly
arbitration clauses, to the arbitration agreement.”
award will be imperilled,
and may be set aside or The validity, existence, or effectiveness of the arbitration
refused recognition and agreement is not dependent upon the effectiveness, existence,
enforcement in whole or or validity of the underlying substantive contract unless the
in part by a competent parties have agreed to this.
court
The doctrine of separability requires direct impeachment of the
arbitration agreement before it can be set aside.
b) Autonomy (or separability) of the arbitration clause
Who Judges? - It is generally accepted that an arbitral tribunal
Doctrine of Separability - an arbitration clause is considered to has power to investigate its own jurisdiction. This is a power
be a separate and autonomous agreement from the contract in inherent in the appointment of an arbitral tribunal. it is an
which it is contained. essential power if the arbitral tribunal is to carry out its task
properly.
validity does not depend on the validity of the contract as a
whole. By surviving termination of the main contract, the clause

By: Atty. Anna De Jesus (Philippines)


Competence-competence - the power of an arbitral tribunal to
decide upon its own jurisdiction, or its competence to decide
upon its own competence.
Article 23(1) of the UNCITRAL Rules provides: “The arbitral
tribunal shall have the power to rule on its own jurisdiction,
including any objections with respect to the existence or
validity of the arbitration agreement. For that purpose, an
arbitration clause that forms part of a contract shall be treated
as an agreement independent of the other terms of the
contract. A decision by the arbitral tribunal that the contract is
null shall not entail automatically the invalidity of the
arbitration clause.”
Article 16 of the Model Law provides: “The arbitral tribunal may
rule on its own jurisdiction, including any objections with
respect to the existence or validity of the arbitration
agreement. For that purpose, an arbitration clause which forms
part of a contract shall be treated as an agreement independent
of the other terms of the contract. A decision by the arbitral
tribunal that the contract is null and void shall not entail ipso
jure the invalidity of the arbitration clause.”
Limitations on Jurisdiction - check applicable rules of
procedure and law of the seat as to what extent those powers
may be limited by the public policy of the seat; arbitration
agreement can confer only powers that are permissible under
the law applicable to the arbitration agreement and under the
lex arbitri.
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Award made without jurisdiction – Under the New York
Convention,” recognition and enforcement of an award may be
refused if the arbitration agreement ‘is not valid under the law
to which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was
made’.”
c) Court Control
A decision given by an arbitral tribunal as to its jurisdiction is
subject to control by the courts of law.
Recourse to the courts on issues of jurisdiction is likely to take
place at one of three stages: at the beginning of the arbitral
process; during the course of the process; or following the
making of the award.
In many jurisdictions, an interim award on jurisdiction may be
challenged immediately in the local courts, which permits a
challenge to the arbitral tribunal’s jurisdiction before any
award on the merits has been issued.
Concurrent Control - system under which a national court may
review the issue of jurisdiction before the arbitral tribunal has
issued a final award on the merits
Choices open to the Tribunal - The arbitral tribunal will decide
whether (a) to ‘bifurcate’ the proceedings, asking for separate
pleadings and holding a jurisdictional hearing before issuing an
interim award on jurisdiction, or (b) join the jurisdictional
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objection to the merits, which will then be addressed as part of
the final award.
d) Procedural Aspects of resolving issues of jurisdiction
Objections to the jurisdiction of the arbitral tribunal are usually
raised by a respondent in the early stages of the arbitration (or
by a claimant in relation to any counterclaims).
Most institutional rules require that an objection be raised no
later than the statement of defense, or (for counterclaims) in
the reply to the counterclaim.
e) Options open to the Respondent
FOUR methods of challenging the jurisdiction of an arbitral
tribunal established contrary to its assertion that the tribunal
has no jurisdiction.
i. boycott the arbitration;
arbitration will proceed on an ex parte basis and the
respondent will seek to set aside the award, or to resist
enforcement on the grounds of lack of jurisdiction, after the
final award has been issued.
ii. raise its objections with the tribunal;
request bifurcation of the jurisdictional question. usually
followed by an oral hearing and an interim award. Alternatively,
if the issue has a close connection to the merits, or appears to
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be a dilatory tactic, the tribunal may join the objection to the
merits and address it in the final award.
iii. apply to the national court to resolve the issue; or
respondent may, for example, seek an injunction or similar
remedy to restrain the arbitral tribunal from proceeding (an
‘anti-arbitration injunction’), or the respondent may seek a
declaration to the effect that the arbitral tribunal does not have
jurisdiction in respect of the particular claim(s) put forward by
the claimant
iv. challenge the award, once it has been made.
It may then either challenge the award in the courts of the
country in which the arbitration took place, or refuse to
implement the award and wait for the successful claimant to
attempt to enforce it. When an action for enforcement is taken,
the losing party might then argue the objections to jurisdiction
as a ground for refusal of enforcement.
Combined Approach – raise the matter to the arbital tribunal at
the earliest possible stage, If the arbitral tribunal upholds its
own jurisdiction, as it frequently does, the respondent should
continue to participate in the arbitration, having expressly
reserved its position in relation to the issue of jurisdiction, so
that this issue may be considered again after the final award is
issued,
Form of Court Intervention - If jurisdiction is denied by the
arbitral tribunal based upon a failure to comply with a
By: Atty. Anna De Jesus (Philippines)
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procedural precondition (what the US courts call ‘procedural

arbitrability’ and other jurisdictions would call ‘admissibility’),
the US Supreme Court has held that the arbitrators must be
given deference. If, on the other hand, jurisdiction has been
denied based on an alleged absence of an arbitration
agreement, failure of the dispute to fall within the scope of the
arbitration agreement, or lack of arbitrability of the dispute
given its nature (what the US courts call ‘substantive
arbitrability’), then the court may exercise a de novo review.

By: Atty. Anna De Jesus (Philippines)