30 - Settlement Efforts and Contract Adaptation by Arbitral Tribunals

Summary

Arbitration is known as an adjudicative process whose outcome is a binding decision on pre-existing rights. At the same time, arbitration is characterized by party autonomy and the arbitrators’ considerable discretion regarding the conduct of the proceedings. That raises the question whether arbitral tribunals, first, can be empowered and, second, can rely on their procedural or remedial powers to go beyond the boundaries of adjudication. This entry will deal with the two most prominent examples of such additional tasks assumed by arbitrators: their efforts in searching a settlement and the adaptation of contracts.In the entry’s first part, the authors outline the different approaches adopted in various national laws and arbitration rules on the role of arbitrators in the process of facilitating a settlement. Against that background, the authors discuss whether frequently used methods of settlement facilitation are authorized under different types of rules. In the second part, the authors examine the concept of adaptation either as an adaptation by interpretation or an adaptation as a process of creating wholly new provisions. In the following, adaptation clauses in the context of arbitration as well as contracts without such clauses are discussed.