Why Arbitrators’ Control of Party Conduct Matters in International Arbitration

Debates continue about arbitrators’ control of party conduct in international arbitration, as practitioners examine whether tribunals can effectively manage increasingly hard-fought proceedings.

Traditional tools such as cost sanctions may not always be sufficient to deter procedural abuse, as Baker McKenzie’s Global Arbitration News reports in a recent article. However, arbitration’s procedural flexibility allows arbitrators to deploy tailored, creative responses to misconduct—options that courts, operating within more structured procedural frameworks, often cannot use. The absence of state-backed enforcement can leave tribunals at a structural disadvantage compared with courts, though their flexibility offers other strengths in managing party behavior.

These dynamics were explored during a debate at London Arbitration Week 2025, 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 favor of the motion that arbitrators lack sufficient control over party conduct, while Kate Corby and Rich Molesworth of Baker McKenzie opposed it.

The discussion contrasted the authority of state courts, particularly their contempt powers, with the consensual and confidential nature of arbitration.

Proponents emphasized that courts benefit from coercive powers unavailable to tribunals, including contempt findings and more routine use of case-management sanctions. They argued that arbitrators may hesitate to deploy similar powers out of concern for repeat appointments or award challenges, and that confidentiality can embolden bad behavior.

Opponents countered that arbitrators already possess broad procedural authority under national statutes and arbitral rules, and that courts themselves often refrain from punitive measures. They framed arbitration and litigation as points along a spectrum rather than opposing models, contending that party choice of arbitrators and procedural adaptability often produce better-managed disputes, even across divergent legal cultures.

Ultimately, the audience narrowly voted against the motion, suggesting a prevailing view that arbitrators do possess sufficient tools to manage party conduct.

For lawyers, the debate offers several practical implications. Transactional teams should view dispute resolution clauses as governance tools that shape risk allocation, enforcement leverage, and post-deal behavior. This is particularly true in cross-border transactions.

When disputes arise, choices about arbitral seat, rules, and tribunal composition can materially affect procedural discipline, disclosure standards, and integration risk.

For in-house counsel managing global legal operations, the discussion underlines the importance of aligning arbitration strategy with enterprise risk management. Boards and deal teams should also consider how arbitration culture interacts with fiduciary duties and shareholder expectations, especially in M&A contexts where post-closing disputes test procedural fairness and cost control.