III - The Authority of Truncated International Arbitral Tribunals

Summary

The final question addressed in chapter three is one that continues to arise in practice and to engender debate: the authority of a truncated tribunal to proceed to issue a final award. The issue comes to the fore when a party-appointed arbitrator resigns or otherwise refuses to participate in panel deliberations, whether unilaterally or at the behest of his or her appointing party. The jurisprudence on this topic has developed significantly with the trend towards judicial (rather than diplomatic) arbitration, in large measure as a result of a series of decisions by the Iran-United States Claims Tribunal and the confrontation of this problem in arbitral rules. There is a discernible preference among tribunals, institutions, and scholars to replace the obstructionist arbitrator and thereby prevent the need for a truncated tribunal. Where this is not in the circumstances feasible, the authority of the remaining two members to proceed to a final determination is widely accepted. Either way, the trend has been to continue to fortify international arbitration against unilateral attempts to derail the proceedings.