INGENIEUR
may be due to the arbitrator’s lack of experience,
insufficient appreciation of the extent of his
powers, or perceived lack of power. The third is
the arbitrator’s unwillingness to take charge or
control of the proceedings, and this may be due
to internal politics, the arbitrator’s over-emphasis
on party autonomy, and his trying to please both
parties or counsel or reluctance to offend any of
the parties or counsel in the proceedings.
What are the Other Possible Responses
to the Crisis?
In their article “The Role of the Tribunal in
Controlling Arbitral Costs”, David Rivkin and
Samantha Rowe advocated the view that
arbitrators must control the proceedings to avoid
excessive costs and delay in the proceedings
before them. The authors argued that:
[…] arbitrators who simply sit back and let
the parties control the agenda are letting
those same parties down. Moreover, they
are letting the system down […].
In fact, it is clear that parties want active
intervention. They want an arbitrator to
save the parties from themselves, or
sometimes from their external counsel.
Michael Schneider, when mounting his
criticism on the International Bar Association (IBA)
Guidelines on Party Representation, argued that,
instead of implementing various rules on counsel
conduct, what we instead need are arbitrators
willing to intervene as necessary to ensure
efficiency of proceedings; he said “we need
arbitrators with courage to discipline parties.”
But is having pro-active arbitrators the
solution to the crisis? I respectfully submit
that it is not. Whilst the promotion of the ‘pro-
activeness’ of arbitrators is laudable, it would
unfortunately not be the solution to the crisis;
for the ability of arbitrators to apply ‘pro-active’
measures effectively and efficiently in arbitration
proceedings to bring about the benefits in terms
of cost and time, would depend on the individual
arbitrator’s experience, confidence, ability and
willingness to control the proceedings, and it
is an unfortunate fact that there are not many
arbitrators who possess the qualities required to
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achieve the objective of a cost and time efficient
arbitration.
To build a sustainable future for arbitration and
regain the confidence of the users, I submit that
we shall not only rest our hope on the arbitrators,
parties and counsel to do the right thing, but rather
we must have a legal framework which provides a
clear guidance as to what the arbitrato rs and the
parties or their counsel, should do, which matches
the current expectation of the users. .
In recent years, we have seen a coherent effort
by various leading arbitration institutions like
the United Nations Commission on International
Trade Law (UNCITRAL), the London Court of
International Arbitration (LCIA), the International
Centre for Dispute Resolution (ICDR), the
Singapore International Arbitration Centre (SIAC)
and the Hong Kong International Arbitration
Centre (HKIAC), to amend their arbitration rules
to allow more power to the arbitrator to control
the proceedings to ensure a fair, expeditious,
economical and final determination of the dispute,
departing from the previous regime which focuses
more on the parties’ consensus on the procedure
or running of the proceedings. By examining
the amendments, we see an enlargement of
power of the arbitrator, and at the same time, a
circumscribed parties’ autonomy. The intention of
these institutions for making the amendments is
clear. However, despite these amendments, the
users’ discontent remains.
We have in the past left the procedure for
the running of the proceedings to the parties
under the philosophy of party autonomy; it did
not work. We have then shifted our emphasis to
giving more power to arbitrators, and promoting
creative methods and procedures in conducting
arbitral proceedings but the problems of costs
of and delays in arbitration persisted. Perhaps
it is time for a major overhaul to our arbitral
legal framework as well as the mind-set of the
stakeholders, and let the rules and the legal
framework dictate clearly how the arbitration
proceedings should be properly run. We need an
arbitral legal framework which would rejuvenate
the confidence of users in arbitration; instil
confidence in arbitrators in the management of
arbitration proceedings; and ensure consistency
in the efficiency of arbitration, both in terms