Arbitration\u27s Protean Nature: The Value of Rules and the Risks of Discretion

The Freshfields Lecture for 2002 questions the wisdom of unfettered arbitrator discretion. The author suggests that the absence of procedural constraint on the arbitral tribunal can create more problems than it solves, often giving the impression of an ‘ad hoc justice’ that damages the perceived legitimacy of the dispute resolution process. Challenging the prevailing orthodoxy about the costs and benefits of discretion, the Lecture explores the feasibility of including; in international arbitration provisions, a set of more precise procedural protocols in institutional provisions, to apply unless the litigants explicitly opt out of the default norms