Part III Procedural Issues, Ch.31 Tribunal's Powers Versus Party Autonomy

Subject(s):

International criminal law, evidence — Arbitral rules — Claims — Conduct of proceedings — Evidence — Arbitration — Applicable law

This chapter analyses the relationship between the tribunal's initiative and the arguments made by the parties. It considers the extent to which a tribunal may or shall integrate or develop arguments that should have been made by the parties, both in respect of questions of fact and in respect of questions of law. It argues that the tribunal is bound in respect of its jurisdiction and of the factual scope of the dispute, but enjoys considerable freedom in respect of the inferences that it draws from the evidence and in respect of the legal consequences of the proven facts. Under certain circumstances, the tribunal's own inferences and arguments should be communicated to the parties, so as to give them the possibility to comment there on.