W9: Arbitrators II - Rights, Duties, and Powers; Role of Domestic Courts

Question 1

Rights

Answer 1

• Jivraj v Hashwani (2011)
• Once an arbitrator accepts his/her appointment, a contract for the provision of services is formed b/w the arbitrator and the parties

1. ARBITRATOR’S FEES AND EXPENSES:
   - Joint and Several Liability of Parties to Arbitrators for REASONABLE fees and expenses [EAA 1996 S.28]
   - Tribunal may refuse to deliver an award until parties have fully paid fees and expense of arbitrators [EAA 1996 S. 56]
   - Where the court removed an arbitrator, it may make an order wrt arbitrator’s right to fees/expenses, or the repayment of any fees/expenses already paid [EAA 1996 S. 24(3)]
   - Fees/expenses in case or resignation [EAA 1996 S. 25]
2. IMMUNITY:
   - Immunities rom suit [EAA 1996 S. 29]

Question 2

Duties

Answer 2

1. GENERAL DUTY:
   [EAA 1996 S. 33]
   (1) The Tribunal shall -
   a) act fairly and impartially as b/w the parties, giving each party a reasonable opportunity of putting his case and dealing w/that of his opponent
   b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay/expense, so as to provide a fair means for the resolution of the matters falling to be determined

• ARBITRATION RULES:
  i. ICC Rules Arts. 22 and 42
  ii. LCIA Rules Arts. 14.4 and 32.2

2. OTHER DUTIES:
   i. Independence and Impartiality
   ii. Confidentiality and Privacy
   iii. To Respect the Procedure Agreed by the Parties
   iv. To Give Reasons for its Decision
   v. To Render an Enforceable Award

Question 3

Powers

Answer 3

1. DEFAULT POWERS:
   i. General Powers [S. 38]
   i. To Rule on their own Jurisdiction [S. 30(1)]
   ii. Over Procedural and Evidentiary Matters [Ss. 34 and 40(2)(a); IBA Guidelines]
   iii. To Appoint Experts, Legal Advisors, or Assessors [S. 37]
   iv. To Order Security for Costs [S. 38(3)]
   v. To Give Directions wrt Any Property [S. 38(4)]
   vi. To Direct a Party/Witness to be Examined on Oath/Affirmation [S. 38(5)]
   vii. To Give Orders for Preservation of Evidence [S. 38(6)]
   viii. In Case of Party’s Default
   ix. Wrt Award:
   a) awards on diff. issues;
   b) correction of award;
   c) additional award
   x. To Grant Injunctions [S. 48(5)(a)]
   xi. To Order Specific Performance [S. 48(5)(b)]
   xii. To Rectify a Contract [S. 48(5)(c)]
2. NON-DEFAULT POWERS:
   i. To Consolidate Proceedings and Hold Concurrent Hearings [S. 35]
   ii. To Make Provisional Awards [Ss. 39 and 47]

Question 4

Role of Domestic Courts

Answer 4

1. Enforcement of the AA
2. Appointment, Removal, and Replacement of Arbitrators
3. Enforcement of Tribunal’s Preemptory Orders [S. 42]
4. Securing Attendance of Witnesses [S. 43]
5. Supporting Arbitral Proceedings [S. 44]
6. Determination of Preliminary Point of Law [S. 45]