The Scope of the Judiciary in Forming and Proceduring Arbitration Panels (A Comparative Study)

Abstract

Arbitration is an alternative to ordinary litigation for resolving disputes, based primarily on the principle of the parties' will and the independence of the arbitration process from court intervention. However, this independence is not absolute, as the judiciary retains a complementary and supervisory role aimed at ensuring the proper conduct of arbitration and achieving justice, without compromising its essence as a consensual means of dispute resolution. Judicial intervention is evident during the formation of the arbitral tribunal when the parties fail to agree on the selection of arbitrators, whether due to their silence, the intransigence of one of them, or a breach of the agreed-upon appointment mechanism. In this case, the judiciary acts as an auxiliary authority to arbitration, appointing the arbitrator or completing the formation of the tribunal at the request of one of the parties, thus ensuring the continuity of the arbitration process and preventing its disruption. Judicial intervention also extends to adjudicating matters related to the recusal or removal of arbitrators if there are serious grounds to question their impartiality or independence. This intervention aims to protect the integrity of arbitration and guarantee the parties' confidence in its decisions. In principle, the arbitral tribunal enjoys full authority in managing the arbitration proceedings, including setting hearing dates, determining the means of proof, and hearing the parties. However, the judiciary may intervene when necessary, particularly in cases requiring coercive power that the arbitration panel does not possess, such as compelling witnesses to attend or issuing temporary precautionary orders to preserve the rights in dispute. The judiciary's intervention at this stage remains restricted to not interfering in the subject matter of the dispute or influencing the arbitrators' conviction, in compliance with the principle of the independence of arbitration.