‘… the benefits of arbitrator discretion are overrated; flexibility is not an unalloyed good; and arbitration's malleability often comes at an unjustifiable cost. Therefore, arbitral institutions should give serious consideration to adopting provisions with more precise procedural protocols to serve as default settings for the way arbitrations should actually be conducted. These directives would explicitly address questions such as documentary discovery, privilege, witness statements, order of memorials, allocation of hearing time, burden of proof and the extent of oral testimony.’1
In light of the foregoing, discuss the extent to which arbitral discretion has impacted procedural autonomy?
Arbitral discretion refers to the practice in arbitration where the arbitrators can conduct proceedings in almost any manner they deem best, as long as they respect the arbitral mission and accord the type of fundamental fairness usually called ‘due process’ or ‘natural justice’.2 The most important tenets of the process is freedom from biasness and the right of all parties to be heard.
It is believed that the absence of procedural rules couched in stone and thus inflexible is seen as constituting arbitration’s strength. This so because it allows a wider latitude for the arbitrators to create relevant procedures and rules that fit the occasion. These rules or norms are then well suited to address a particular dispute. That is the ideal situation. There is, however, concerns on the uncertainties brought about by too much discretion exercised by the arbitrators. This discomfort is informed by the fact that it is fairness for parties to be subjected to known to rules so that they get to know what they are dealing with beforehand. These two views represent the different schools of thoughts for and against arbitral discretion.3
The question this paper seeks to address is whether arbitral discretion, by freewheeling, addresses the issues raised without compromising procedural autonomy. It seeks to put into perspective the conflicts between the two schools of thoughts aforementioned above.
It is important to explain what procedural autonomy means before delving into the discussion. Simply put, procedural autonomy means set procedures based on independent rules and norms followed over time and respected and recognised as such without being questioned by the parties that subject themselves to them. In arbitration, it may refer to arbitration rules set by a tribunal system or the national legislations regulating arbitration in a particular legal jurisdiction4. By and large, it is the whole philosophy of having pre-determined rules and norms that the arbitrators are discouraged from departing from during the process of arbitration. This does not mean that the arbitrators cannot exercise their discretion – in fact the whole arbitration process is based on discretion – but rather that the discretion must be exercised within a known procedural framework.
It has been stated that the discretionary power of tribunal exists not only in ad hoc proceedings, but also when the parties agree to a set of prefabricated institutional provisions, such as those of the International Chamber of Commerce or the American Arbitration Association.5 These provisions sometimes give the tribunal wide discretion to do as it wishes and sometimes this wide discretion go against procedural autonomy.
Arbitral discretion and procedural autonomy
Arbitral discretion has its own challenges. Some of these challenges are; the parties may fail to own the process as theirs if the arbitrator acts in a manner influenced by his or her own background, the process is may be marred by uncertainties involving parties expectations, and above all there always seems to be conflict on which procedure a discretionary arbitrator should take or ought to have taken6. Further, sometimes where the parties have little in common, it seems the arbitrator, by choosing a particular direction, pre-determines the outcome of the arbitral proceedings.
It therefore follows that there is always a need to have a set default procedural protocol that brings certainty and addresses concerns raised by discretion. The familiarity of procedures makes the parties comfortable and ready to embrace the outcome of such a process7.
Arbitral flexibility is important because it defines the orthodox nature of arbitration. It is for its flexibility that most hard questions regarding procedural matters are left to arbitrators to decide. This may yield immediate dividends in terms of time saving and costs cutting however it does not guarantee fairness and justice for the aforementioned reasons. It therefore follows that the process should as much as possible to attempt to fuse procedural autonomy with arbitral discretion.
Arbitral discretion is usually important for plugging gaps left behind by rules and guidelines formulated by the different arbitration authorities and practices. It is a known fact that in life, while make rules, not all what must be included is included or what must not be included is left out so the freedom granted to arbitrators to do away with some procedural requirements and adopt others may help facilitate a less costly and more efficient arbitration process. This, however, comes at a cost. The arbitrator may leave the rules or aspects that both parties are comfortable with and throwing them in a situation of getting what they do not want.
Sometimes the parties come with known rules in mind but since the arbitrators are at discretion to change the rules the parties, or at least one, may feel uncomfortable when arbitrators adopt the rules during the process of arbitration and more so rules alien from those known by the parties or the industry.
1 William W. Park, The 2002 Freshfields Lecture — Arbitration's Protean Nature: The Value of Rules and the Risks of Discretion,
2 William W. Park, ibid.
3 Keith S. Burn and Richard Flake, Administered vs. Ad Hoc Arbitration: Which Should You Choose? https://www.aaau.org/media/27713/materials.pdf (American Arbitration Association). December 2, 2015
4 RolfOrtlepen Maartje Verhoeven , The principle of primacy versus the principle of national procedural autonomy, Netherlands Administrative Law Library http://www.nall.nl/tijdschrift/nall/2012/06/NALL-D-12-00003
5 William Park, ibid.
6 Annalise Nelson, The LCIA Arbitrator Challenge digests: An Interview with William (Rusty) Park, http://arbitrationblog.kluwerarbitration.com/2011/11/23/the-lcia-arbitrator-challenge-digests-an-interview-with-william-rusty-park/ Noveember 23, 2011. (retrived 31/08/2018)
7 William Park, ibid
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