In the evolving landscape of international arbitration, concerns continue to mount over arbitrators’ ability to effectively manage party behaviour. Are cost sanctions enough to deter misconduct? Or do courts, with their stricter rules and enforcement powers, offer better control? Are arbitrators able to creatively and effectively assert control, leveraging procedural flexibility to tailor solutions and maintain fairness?
These questions were the focus of a US-presidential-style debate on arbitrators’ powers held during London Arbitration Week 2025 and chaired by Jamie Harrison, Deputy Director General of the London Court of International Arbitration. Iain Quirk KC and Alison Macdonald KC of Essex Court Chambers argued in favour of the motion, while Kate Corby and Rich Molesworth of Baker McKenzie opposed it. We have summarised in this article some of the key arguments put forward by each – it should be noted that the views expressed by the speakers were not necessarily their own.
The motion, “This House believes that arbitrators do not have sufficient control over party conduct“, prompted a thoughtful exchange on whether arbitrators have the tools they need to ensure compliance by parties, or whether other factors prevent them from being as decisive and forceful as they should be. Both sides compared and contrasted the flexible and international nature of arbitration with the more rigid dispute resolution mechanisms associated with state-backed courts, disagreeing on whether arbitrators’ greater freedom with regard to procedure and enforcement was a key strength or a fatal weakness. The debaters also assessed the diversity of standards of conduct internationally and shared war stories to move towards an answer the question: do arbitrators have the power to control parties’ conduct, or does arbitration’s strength lie in its consensual, party-driven nature – even if that means tolerating a bit of mischief?
Contempt of court – the ultimate sanction
Because courts are backed by the state, they are able to impose their will on parties in a way that arbitrators simply cannot. A finding of contempt of court is the ultimate sanction, and the threat of it provides a deterrent to party misconduct that is not available to a tribunal. This means parties feel freer to bend or break the rules when presenting their case in arbitration than they would in a court of law.
Courts are also prepared to use their softer powers in a way that arbitrators, even if they have similar powers on paper, are less willing to. When was the last time you saw a wasted costs order in arbitration? Whereas courts frequently use their case management powers for good – such as by curbing excesses by counsel in cross-examination – arbitrators often seem reluctant (or unwilling) to whip parties and their representatives into line. This may be because arbitrators (unlike judges) are often concerned about their next appointment, or because lawyers do not always demonstrate the same level of respect towards a tribunal than they would a judge. Though not an excuse, lawyers have a duty to the court and owe meaningful obligations in that regard as its officers. In addition, the confidentiality of arbitration provides another possible excuse for bad behaviour – parties and lawyers know that their misconduct will (usually) not be made public in the way that it would be by a court’s judgment.
These faults reflect the fact that arbitral tribunals may not necessarily be seen to possess the dignity and seriousness that each limb of the state is naturally endowed with. Courts are venerated places where the drive for justice is paramount and judges’ authority supreme – you would never see a judge turn up to a hearing late, coffee and a biscuit in hand, as some arbitrators have been known to do! Likewise, when compared to the solemn oath of truthfulness that witnesses must swear to the court, the alternative affirmation wording often used in arbitration is less robust. Without the spine of the state to support it, it can be said that arbitration simply lacks the clout of state courts.
Arbitrators have broad procedural powers
On the other hand, there can be no doubt that arbitrators do possess wide-ranging procedural powers. Take the Arbitration Act 1996, for example. Section 34 empowers the tribunal to decide all procedural matters. Section 41 gives the tribunal the power to make peremptory orders against badly-behaved parties. All arbitral rules contain similar provisions. So it is less about whether arbitrators have the powers they need to keep parties in check, and more about whether they are too shy to use them. Surveys of users of arbitration reveal that there is a perception that tribunals should use their powers more boldly. But is this characterisation too broad-brush?
A key difference between courts and tribunals that swings in arbitration’s favour is that parties can choose their arbitrators. This means parties can reappoint arbitrators who use their powers as intended, which engenders a virtuous cycle of better conduct by parties and better arbitrators to oversee them. And while the threat of contempt of court may not hang over parties in arbitration, how often is that mechanism actually employed in commercial litigation? Courts, like tribunals, are reluctant to use their more punitive powers to discipline unruly parties, so long as the hearing date is not affected – we’ve all litigated against parties that consistently miss deadlines and make late requests for extensions, all without the court ever imposing sanctions.
So, it seems the opposition of arbitration and litigation is a false one when it comes to controlling party conduct; it is a spectrum, and the two fora are not situated at either end of it.
The flexibility of arbitration vs litigation – in theory and in practice
Flexibility is key to the success of arbitration. It comes in two forms. First, there is the flexibility that parties have from the outset in respect of the format of the arbitration. They have the ability to choose the seat, the language of the proceedings, and of course, the arbitrators themselves – often not chosen just for their expertise or background, but which jurisdiction they are qualified in (if legally qualified at all, as a party may wish to appoint an arbitrator with a technical or industry background instead). There is also choice over counsel and the procedural framework and timetable. All that customisation makes arbitration the best method for dealing with international commercial disputes. If court is like traditional television, with four analogue channels and the inevitable delays and glitches in broadcasting – arbitration is like streaming, boasting a seemingly endless range of platforms and product offerings.
The second form of flexibility arbitration possesses is its capacity to accommodate last-minute changes in the dispute resolution process. When a hiccup arises – such as an unforeseen change to a party’s representatives – the tribunal can shift deadlines and allow additional responses to ensure that the agreed procedure remains fair. Such alterations are a world away from the procedural shenanigans that so often bog down litigation.
This is not to say that courts cannot, in principle, agree the same kind of timetable amendments. Furthermore, the more detailed procedural framework of litigation provides some safeguards that might be lacking in arbitration. For instance, the disclosure process may be perceived as unsatisfactory in arbitration, with tribunals failing to probe claims to privilege in the way that courts so often do. There is a sense in arbitration that “things will all come out in the wash” – though its much vaunted flexibility means it cannot guarantee the granular level of case management the courts aim to provide.
Tribunals v courts – dealing with rudeness
The architecture of arbitration leaves room for confrontational behaviour that court proceedings arguably do not. In an arbitration, the parties typically sit opposite one another (with the tribunal seated at the top end of the horseshoe configuration). Rather than directing their submissions to a neutral arbiter, the parties face each other when presenting their submissions, and so there is a baked-in tendency for things to get out of hand. Shouting, fist-banging, pointing – these are things we are accustomed to in arbitration that we would not expect to see in court before a judge.
Yet the other side of the coin is that arbitration is enriched by the range of jurisdictional backgrounds and conventions it gathers. In some parts of the world, a more aggressive and emotive advocacy style is de rigueur, while in others restraint and stateliness win the day. International arbitration is a of melting pot in which these competing cultures can go head-to-head. And when advocates do breach international standards of etiquette, it is perfectly open to the tribunal to let them know where the line is.
Just because you are paranoid about due process, does not mean they are not going after your award
The idea that arbitrators are paranoid about their awards being challenged on the basis that they have not observed due process if they are too firm with a party has become something of a staple of arbitration discourse. But does it have a basis in reality? A close study of the case law reveals that the risk of a successful challenge to a tribunal’s award on due process grounds is close to zero, at least when it comes to the English courts. That being said, no amount of caution can rule out the possibility of an aggrieved party challenging an award – so we have a catch-22 scenario.
Yet there remains a perception that arbitrators are more interested in placating parties than resolving disputes fairly. Because they are dependent on repeat business from their “customers” in order to earn their keep, the mantra of “due process” can sometimes appear as a way for arbitrators to avoid stepping on any sensitive toes and thereby foregoing future fees. By routinely asking parties before they begin deliberations whether they are happy with how the tribunal has conducted proceedings, tribunals can create the impression that arbitrators are in thrall to service users. But is that such a bad thing? Perhaps it is yet another of arbitration’s key qualities, rather than a flaw, that the satisfaction of both parties to each dispute is paramount.
Conclusion: How I learned to stop worrying and love arbitration
The debate over arbitrators’ control over party conduct will rage on – but in this debate, a fragile yet meaningful consensus emerged. Both sides agreed that despite its flaws, arbitration remains the best forum for resolving international commercial disputes, regardless of whether arbitrators need to get a firmer grip on proceedings. And the debate’s audience seemed to feel that, at the end of the day, arbitrators do have sufficient control over party conduct: they narrowly voted against the motion, delivering a precious victory to Baker McKenzie.
