Defining the Contours of a Commercial Arbitral Tribunal: Can ICSID Decisions Confer an Inherent Power on the Tribunal to Regulate Appointment of Counsels?

International arbitration dwells in an ethical no-man’s land. There exists no supra-national norm of sufficient clarity that allows arbitrators to regulate the behaviour of a counsel whose participation is detrimental to the fair adjudication of the dispute. In such circumstances, if a party appoints a counsel much after the tribunal has been formed, such that the independence and impartiality of the tribunal is put to test, important questions about the scope of inherent powers of the tribunal are raised. Two ICSID decisions have sought to address this problem, by advocating the existence of an inherent power, exercisable under certain circumstances to terminate the appointment of such a counsel. This paper attempts to expand the use of such a power in the field of international commercial arbitration, in the absence of any codification of law on the issue. The fundamental assumption of this paper is that this power is to be exercised only in situations where the tribunal has been formed and a party has exercised
mala fides in appointing a counsel post such formation. It proposes the adoption of a middle path between the two ICSID decisions in order to ensure legitimacy of the arbitral process.