Inherent and Implied Powers of Arbitrators

14 Pages Posted: 26 Sep 2014

See all articles by Margaret L. Moses

Margaret L. Moses

Loyola University Chicago School of Law

Date Written: August 8, 2014

Abstract

The powers of arbitrators are generally based on the provisions of an arbitration clause agreed to by the parties to an arbitration, including any arbitral rules chosen to govern the arbitration. However, because these short clauses cannot set forth every kind of power that an arbitrator may need in the course of an arbitration, he may have to call on inherent or implied powers. This article sets forth a framework for understanding what is meant by inherent powers and implied powers of arbitrators. The distinction is important, but many commentators and courts use the terms interchangeably. Basically implied powers are those that can be implied or discerned from a textual provision, either in the clause adopted by the parties, or in the arbitral rules chosen by the parties, or in the applicable arbitration law. Inherent powers are those that an arbitrator may need to call on when novel situations occur for which there is no specific rule or authority. In all cases, but particularly with respect to inherent powers, an arbitrator must act with caution not to overstep proper authority and thereby endanger the enforcement of an arbitral award.

Keywords: arbitrator, arbitration, arbitration clause, inherent power, implied power, enforcement, arbitral award

JEL Classification: K10, K33

Suggested Citation

Moses, Margaret L., Inherent and Implied Powers of Arbitrators (August 8, 2014). Loyola University Chicago School of Law Research Paper No. 2014-015, Available at SSRN: https://ssrn.com/abstract=2501046 or http://dx.doi.org/10.2139/ssrn.2501046

Margaret L. Moses (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States
312-915-6430 (Phone)
847-475-8984 (Fax)

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