In
comparison with state courts, which are a part of the legal hierarchy and are
bound to comply with procedural rules and to apply its laws (or, in
international matters, its conflict of law rules), the arbitrator is not part
of any legal hierarchy and thus appears essentially to be free; this is
particularly true of the international arbitrator. This is not to say that he
is not subject to certain constraints. However these have a different origin:
they result from the parties’ wishes, from the jurisdictional nature of the
arbitrator’s function, and, in modern legislation, only to a limited extent
from certain overriding rules imposed by the State of the seat of the
arbitration. In addition, these constraints are relatively limited, the
principle being that the parties have confidence in the arbitrator that they
have chosen and allow him great autonomy, which the State of the seat upholds.
The arbitrator is nevertheless encouraged to comply with these constraints by
his awareness that his mission is to issue an award which is both fair and effective.
The immense freedom of action which subsists comprises three different aspects.
Taking the simplest, in some respects negative, aspect, namely the lack of
constraints, such freedom calls for directives, which practice will elaborate
over time. From a more positive aspect, such freedom can manifest itself by the
refusal to accept certain constraints, at the risk of seeing an award annulled,
when higher considerations, and in particular that of justice, take over.
Finally such freedom can be creative, where the arbitrator participates in the elaboration
of new rules, as can be seen in particular in the sphere of the international
protection of investors.