Table Of ContentSOURCES OF INHERENT POWERS
Andrea K. Bjorklund and Jonathan Brosseau1
5 December 2017
INTRODUCTION ............................................................................................................................... 2
I. DEFINING INHERENT POWERS: EXERCISING, OR EXCEEDING, AN ADJUDICATIVE BODY’S
FUNCTION? ..................................................................................................................................... 5
A. Origin in Domestic and International Law ......................................................................... 6
B. Necessary Judicial Powers ................................................................................................ 11
C. Scope of Powers—Private vs. Public Functions ............................................................... 17
D. Consent and Its Limits in International Adjudication ....................................................... 21
II. SOURCES AND TYPES OF INHERENT POWERS: THE MULTIPLE AND THE OVERLAPPING .. 33
A. Expressed Inherent Powers ............................................................................................... 34
B. Discretionary Inherent Powers .......................................................................................... 41
C. Implied Inherent Powers .................................................................................................... 46
D. Rule-Based Inherent Powers ............................................................................................. 53
CONCLUSION ................................................................................................................................ 57
1 Andrea K. Bjorklund is the L. Yves Fortier Chair in International Arbitration and International Commercial
Law at McGill University Faculty of Law. Jonathan Brosseau is a graduate from the B.C.L./LL.B. (Hons.) program
at McGill University and the LL.M. program (Volterra Fietta Prize) at the University of Cambridge. We are grateful
to Catherine Kessedjian and Martins Paparinskis for comments on an earlier draft of this paper. All errors, of
course, are ours alone.
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INTRODUCTION
In September 1984, the Full Tribunal of the Iran-United States Claims Tribunal
(“IUSCT”) was scheduled to meet in administrative session when a dramatic incident occurred
that appeared to be unprecedented in the history of international arbitration. An ongoing feud
within the Tribunal ended with the two Iranian members grabbing and pounding their Swedish
colleague until the police rushed in to rescue the 69-year-old arbitrator. One of the Iranian
members even reportedly threatened to kill that same arbitrator two days later.2 The procedure to
follow in these circumstances was, perhaps unsurprisingly, envisaged by no single provision of
the Algiers Declarations or the Tribunal Rules.3 But this in no way prevented the President of the
IUSCT from acting. He immediately canceled all further proceedings, relying on the “the powers
inherent in the office of the President.”4
This anecdote illustrates themes central to this chapter. One is that international courts
and tribunals have typically referred to, and relied on, inherent powers when unexpected and
unusual issues not directly addressed by their constitutive instruments and procedural rules have
arisen,5 especially in nascent fields of international law.6 Another theme that this anecdote brings
2 Roman Rollnick, Showdown in The Hague Brawl Stalls U.S.-Iranian Claims Tribunal, UNITED PRESS
INTERNATIONAL, Sept. 15, 1984, http://www.upi.com/Archives/1984/09/15/Showdown-in-The-Hague-Brawl-stalls-
US-Iranian-claims-tribunal/8388464068800/.
3 Letter of John R. Crook (Agent of the U.S.) to the Appointing Authority initiating the Challenge of Judges
Mahmoud Kashani and Shafei Shafeiei (Sept. 17, 1984), reprinted in DAVID D. CARON & LEE M. CAPLAN, THE
UNCITRAL ARBITRATION RULES: A COMMENTARY 235–36 (2d ed. 2013).
4 Letter of Gunnar Lagergren (Iran-U.S. Claims Tribunal President) to All Arbitrators, Mohammad K. Eshgrah
(Agent of Iran), and John R. Crook (Agent of the U.S.) (Sept. 5, 1984), reprinted in Gunnar Lagergren, Iran-United
States Claims Tribunal, in REALISM IN LAW-MAKING: ESSAYS ON INTERNATIONAL LAW IN HONOUR OF WILLEM
RIPHAGEN 113, 128–29 (Adriaan Bos & Hugo Siblesz eds., 1986).
5 This chapter sometimes mentions constitutive instruments alone for reasons of brevity and style, even if
procedural rules can equally shape inherent powers: see, e.g., CAMERON A. MILES, Ch. 3: Constituent Instruments
and Procedural Rules, in PROVISIONAL MEASURES BEFORE INTERNATIONAL COURTS AND TRIBUNALS 82 (2017).
6 In the domestic context, see Paola Gaeta, Inherent Powers of International Courts and Tribunals, in MAN’S
INHUMANITY TO MAN: ESSAYS ON INTERNATIONAL LAW IN HONOUR OF ANTONIO CASSESE 365 (Antonio Cassese &
Lal Chand Vohrah eds., 2003) (“[T]o supplement the paucity of statutory regulations, courts of law [in common law
jurisdictions] need to resort to the notion of inherent powers in order to deal with the multifarious occurrences
copping up in judicial proceedings.”). In the international context, see Michele Buteau & Gabriel Oosthuizen, When
the Statute and Rules Are Silent: The Inherent Powers of the Tribunal, in ESSAYS ON ICTY PROCEDURE AND
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to light is that adjudicative bodies have rarely attempted to define these powers and to map out
their sources.7 While commentators have debated various approaches to these issues,8 there
remain significant uncertainty and confusion in practice about the content and legal basis of
inherent powers.
This chapter takes part in a debate about the sources of inherent powers that has been
particularly vibrant since the early 2000s. It also seeks to engage with the scope of inherent
powers, but only insofar as it relates to the very existence—and not the limitations or
boundaries—of these powers.9 Although the concept of inherent powers is closely tied to the
procedural powers of an adjudicative body, the analysis goes beyond the conduct of the
arbitration and includes “merits” or substantive issues, which are also essential to understanding
these powers.10 Further, one of this chapter’s added contributions to the scholarship is the
discussion of ad hoc commercial arbitration, which is mostly left out of pieces on international
adjudication and addressed on its own in separate pieces.11 Numerous examples thus come from
this field, although independent research was also conducted to ensure they depict broader trends
applicable in international adjudication.12
EVIDENCE IN HONOUR OF GABRIELLE KIRK MCDONALD 65 (Richard May et al. eds., International Humanitarian Law
Series, 2001) (stating that “[t]he main cause of the need to resort to such [inherent] powers lies in the relatively
rudimentary nature of the [International Criminal Tribunal for the former Yugoslavia, or 'ICTY’]’s constituent
instrument, the Statute, and its Rules and other formal documents.”).
7 Gaeta, supra note 6, at 358; Elihu Lauterpacht, “Partial” Judgements and the Inherent Jurisdiction of the
International Court of Justice, in FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE: ESSAYS IN HONOUR OF
SIR ROBERT JENNINGS 477 (A. V Lowe & M Fitzmaurice eds., 1996); Chester Brown, Inherent Powers in
International Adjudication, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 829 (Cesare Romanò et
al. eds., 2014).
8 See infra § I.A.
9 On the limits of inherent powers, see Chester Brown, The Inherent Powers of International Courts and
Tribunals, 76 BRIT. Y.B. INT'L L. 195, 237–244 (2006).
10 On procedural issues and inherent powers, see Jeffrey Waincymer, Powers, Rights and Duties of Arbitrators,
in PROCEDURE AND EVIDENCE IN INTERNATIONAL ARBITRATION 71–74 (2012).
11 See, e.g., Margaret L. Moses, Inherent and Implied Powers of Arbitrators, in DEFINING ISSUES IN
INTERNATIONAL ARBITRATION: CELEBRATING 100 YEARS OF THE CHARTERED INSTITUTE OF ARBITRATORS 209
(Julio César Betancourt ed., 2016). One notable exception is the practice of the IUSCT, although it too forms a
relatively self-contained system in comparison to ad hoc commercial arbitral disputes.
12 On inherent powers comparatively in numerous fields of international law, see Brown, supra note 9,
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The main thesis of this chapter is that the distinguishing feature of inherent powers is not
their absence from constitutive instruments, but rather the fact that they are powers necessary to
fulfill the judicial function. This definition of inherent powers is broad mostly because the
concept of inherent powers itself overlaps with other ideas in international law. Although
inherent powers may partly differ as between interstate adjudication and international arbitration,
they do share certain essential characteristics. For instance, it is possible that certain powers
inherent in international adjudication, such as those necessary to ensure independent and
impartial adjudication, should be considered immutable. In addition, this thesis emphasizes the
primary role that constitutive instruments and procedural rules play in shaping the inherent
powers of international courts and tribunals, which should alleviate concerns about the
legitimacy of these powers. While inherent powers are indeed typically non-enumerated powers
that originate from well-entrenched rules in international law,13 inherent powers can be set out in
the expressed and discretionary provisions of constitutive instruments or inferred from these
instruments as a whole.
This chapter is divided into two. The first section aims to define the challenging concept
of inherent powers, contemplating the broader issue of whether the use of these powers amounts
to exercising, or exceeding, an adjudicative body’s proper function. The chapter thus considers
the origin of inherent powers in domestic and international law, the idea that inherent powers are
necessary judicial powers, and the scope of these powers. The analysis then focuses on the limits
(or potential absence of limits) that state and private parties can (or cannot) impose on inherent
powers. The second section of the chapter examines the multiple and overlapping sources and
13 Compare Filip De Ly et al., Report for the Biennial Conference in Johannesburg, INT'L L. ASS'N, COMM. ON
INT'L COM. ARB. (Aug. 2016) (introducing the helpful term “non-enumerated powers”) with Brown, supra note 9, at
205 (opting for “extra-statutory powers").
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types of inherent powers. Inherent powers that are expressed, discretionary, implied, and rule-
based are studied in turn.
I. DEFINING INHERENT POWERS: EXERCISING, OR EXCEEDING, AN ADJUDICATIVE
BODY’S FUNCTION?
The task of defining inherent powers in international adjudication is a tall order for many
reasons. First, the exact meaning of the term “inherent” itself is elusive. Second, drafters have
refrained from using the specific term “inherent powers” in treaties, agreements, and rules. This
is unsurprising given they have traditionally been understood as non-enumerated powers, but it
remains the case that there is no authoritative definition of the concept—not even in soft law
instruments or in secondary sources of international law.14 Third, the given meaning of these
powers may vary from one adjudicatory body to another in international adjudication. Even the
same adjudicatory body sometimes refers to the term as synonymous with other ones. For
example, “the [ICTY] Chambers have in various instances referred to the power at issue as an
‘inherent’ or an ‘implied power’, and as an ‘incidental’ or ‘ancillary jurisdiction,’ often
apparently interchangeably, in similar contexts.”15 Thus, the practice of international courts and
tribunals on inherent powers is far from consistent.
Yet, it is fundamental to have a working definition and understanding of the concept in
order to have an informed discussion. Commentators have attempted to provide such a
definition. Most notably, the ILA’s Committee on International Commercial Arbitration issued a
report in 2016 suggesting a framework for understanding inherent powers, which includes three
categories: (1) “powers implied by textual sources: powers particular to the parties’ agreement”;
14 Notably, the ILA’s Committee on International Commercial Arbitration could not agree on a definition of
inherent powers, and revised its findings between the 2014 and 2016 versions of the report: De Ly et al., supra note
13, n.1.
15 Buteau & Oosthuizen, supra note 6, at 80.
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(2) “discretionary powers of procedure: the right to oversee proceedings”; and (3) “inherent
powers: the duties of arbitrators to protect the integrity of proceedings and render an enforceable
award.”16 While this report contains laudable insights, it fails to distinguish clearly between the
concepts of implied powers and inherent powers. In this section, we will show that inherent
powers should be defined as necessary judicial powers. But, first, the origin and development of
inherent powers in both domestic and international law are examined.
A. Origin in Domestic and International Law
The doctrine of inherent powers gradually emerged from the practice of English courts
several centuries ago. As the concept of a substantive law independent from any particular
sovereign developed, certain powers deriving from the royal prerogative were eventually
recognized as inherent powers of the courts.17 In 1885, Lord Blackburn famously observed that
“from early times (I rather think, though I have not looked at it enough to say, from the earliest
times) the court had inherently in its power the right to see that its process was not abused by a
proceeding without reasonable grounds.”18 The doctrine today has spread and flourished in
multiple common law jurisdictions, including the United States, Australia, Canada, Singapore,
and New Zealand.19 While there is a debate as to whether all courts or only superior courts
possess inherent powers, it is agreed that the basis for them is not statutory, but rather “the
authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering
16 Id. at 80.
17 Robert J. Pushaw, The Inherent Powers of Federal Courts and the Structural Constitution, 86 IOWA L. REV.
735, 800–06 (2001) (“English judges initially served as the king’s personal representatives in exercising his
prerogative to do justice. . . . This bond with the executive branch was the source of the judiciary’s deep well of
powers-including those that gradually came to be known as ‘inherent,’ such as contempt. Courts gradually became
more autonomous as the idea emerged of a substantive law that existed independent of any particular ruler”).
18 Metropolitan Bank Ltd. v. Pooley [1885] 10 App. Cas. 210 (PC) per Lord Blackburn at 220–21.
19 De Ly et al., supra note 13, at 5.
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justice according to law in a regular, orderly and effective manner.”20 Common law courts have
therefore exercised inherent powers to make rules of court and directions, to prevent abuse of
process, to stay proceedings, and to exercise control over persons.21
While the doctrine of inherent powers is a cornerstone of judicial powers in common law
jurisdictions, there is no exact equivalent to it in the civil law tradition. The primacy of codes and
legislation in civil law jurisdictions is traditionally reinforced by ongoing skepticism towards the
judiciary.22 The rules of civil procedure are hence mostly spelled out in constitutional law and
statutes.23 In spite of these limitations, civil law judges do rely sometimes on non-enumerated
powers as a source of procedural law, such as rules relating to fundamental rights in France,
custom in Norway, or judicial decisions in Sweden.24 Thus, some of the inherent powers
described would indeed be recognized and exercised by civil judges.25 Given that inherent
powers are essentially judge-made, one should approach them cautiously in the international
adjudicatory realm since the canonical list of sources of international law assigns an evidentiary
role to judgments that is closer to the civil rather than the common law.
In international adjudication, the concept of inherent powers was seemingly first
introduced with the principle of compétence de la compétence (“competence-competence” or
20 I.H. Jacob, The Inherent Jurisdiction of the Court, 23 CURRENT LEGAL PROBS. 23, 27 (1970). See also J.A.
Jolowicz, Practice Directions and the Civil Procedure Rules, 59 CAMBRIDGE L.J. 53, 56–57 (2000); Connelly v.
DPP, [1964] AC 1254 (PC) per Lord Morris of Borth-y-Gest at 1301. One may expect that lower courts would need
to rely even more frequently on inherent powers than superior courts, as they are “on the front line” managing case
developments and obstreperous litigants.
21 Brown, supra note 7, at 833 (footnotes omitted).
22 H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD: SUSTAINABLE DIVERSITY IN LAW 155 (2014).
23 For example, the judge in Brazil is bound in procedural matters by the minutiae of the Code of Civil
Procedure. CÓDIGO DE PROCESSO CIVIL [C.D.C] Lei No. 13.105 de Março de 2015, arts. 139–43.
24 Brown, supra note 9, at 206 n.71.
25 The prior examples of rules resembling inherent powers do not precisely correspond to court-made doctrine
in the common law and have different purposes and scope of application. Jessica Liang, The Inherent Jurisdiction
and Inherent Powers of International Criminal Courts and Tribunals: An Appraisal of Their Application, 15 NEW
CRIMINAL LAW REVIEW: AN INTERNATIONAL AND INTERDISCIPLINARY JOURNAL 375, 377 (2012) (“Although
commentators have cited examples of principles resembling [those] of inherent powers in European civil law
systems, these do not fully correspond to the common law version.”) (footnotes omitted).
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“kompetenz-kompetenz”). In the case of The Betsy (1797), the question arose whether the
commissioners of the Mixed Commissions organized under the Jay Treaty between the United
States and Great Britain had the power to determine their own jurisdiction. US Commissioner
Gore opined: “[a] power to decide whether a Claim preferred to this board is within its
Jurisdiction, appears to me inherent in its very Constitution, and indispensably necessary to the
discharge of any of its duties.”26 A century later, the report of Baron Descamps to the First Hague
Conference of 1899 on Article 48 of Convention No I suggested that rejecting the principle
would place the tribunal in the condition of a court incapable of acting: “[t]he more arbitration
assumes the character of an institution of international common law, the more the power of the
arbitrators to decide upon this matter appears to be of the very essence of the arbitral function
and one of the inherent requirements for the exercise of this function.”27
The advent of the International Court of Justice (“ICJ”) has strengthened the position that
international courts and tribunals have inherent powers, including the power of determining their
own jurisdiction. Article 36(6) of the ICJ Statute provides that “[i]n the event of a dispute as to
whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”28 In
its early years, the ICJ reflected upon the origin and purpose of this provision in the Nottebohm
case:
Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently
accepted by general international law in the matter of international arbitration. Since the
26 JOHN BASSETT MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED
STATES HAS BEEN A PARTY 2278 (1898).
27 JAMES BROWN SCOTT, THE REPORTS TO THE HAGUE CONFERENCES OF 1899 AND 1907, at 83 (1917) (“The
parties may, of course, limit as they may agree the extent of the powers of the arbitrators; they may submit the
exercise of this power to such reservations as they deem necessary or opportune. They may, if they choose,
formulate the principles which the arbitrators shall follow to guide them in their decision. But it does not seem
possible to refuse the arbitrators the power of deciding in case of doubt whether the points are within or without
their jurisdiction.”).
28 Statute of the International Court of Justice art. 36, ¶ 6, June 26, 1945, 59 Stat. 1055, T.S. No. 993. Art. 53, ¶
2 also envisages that in the absence of an appearance by a party, the Court has to satisfy itself “that it has
jurisdiction.”
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Alabama case, it has been generally recognized, following the earlier precedents, that, in
the absence of any agreement to the contrary, an international tribunal has the right to
decide as to its own jurisdiction and has the power to interpret for this purpose the
instruments which govern that jurisdiction . . . .
Article 36, paragraph 6, suffices to invest the Court with power to adjudicate on its
jurisdiction in the present case. But even if this were not the case, the Court, “whose
function is to decide in accordance with international law such disputes as are submitted
to it” (Article 38, paragraph 1, of the Statute), should follow in this connection what is
laid down by general international law. The judicial character of the Court and the rule of
general international law referred to above are sufficient to establish that the Court is
competent to adjudicate on its own jurisdiction in the present case.29
In other words, the Court asserted that its power to decide on its own competence may well be
expressly laid down in its Statute, but also that this power could derive from the nature of the
Court or general international law. Thus, the Court is suggesting that a provision in its
constitutive instrument may simply recognize a power it already possesses.30
Although international courts and tribunals have referred to, and relied on, inherent
powers commonly in the last decades, few have offered detailed explanations about the legal
basis of these powers.31 The Nuclear Tests case of 1976 contains the ICJ’s most elaborate
analysis of its inherent powers:
the Court possesses an inherent jurisdiction enabling it to take such action as may be
required, on the one hand, to ensure that the exercise of its jurisdiction over the merits, if
and when established, shall not be frustrated, and on the other, to provide for the orderly
settlement of al1 matters in dispute, to ensure the observance of the “inherent limitations
on the exercise of the judicial function” of the Court, and to “maintain its judicial
character.”32
The Court further exposed in this decision the sources or rationale of its “inherent jurisdiction”:
Such inherent jurisdiction, on the basis of which the Court is fully empowered to make
whatever findings may be necessary for the purposes just indicated, derives from the
29 Nottebohm (Liech. v. Guat.), Preliminary Objections, 1953 I.C.J. 111, ¶¶ 119–20 (Nov. 18).
30 See GERALD FITZMAURICE, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE 451–57
(1986). See also infra § II.A.
31 Gaeta, supra note 6, at 358; Lauterpacht, supra note 7, at 477; Brown, supra note 7, at 829.
32 Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253 ¶ 23 (citing Northern Cameroons (Cameroons v.
U.K.), Preliminary Objections, 1963 I.C.J. 15, at 29 (Dec. 2)).
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mere existence of the Court as a judicial organ established by the consent of States, and is
conferred upon it in order that its basic judicial functions may be safeguarded.33
Interpreting this passage, Professor Brown identified three different bases of inherent powers: the
nature of an international court as a judicial body, the doctrine of implied powers, and the basic
judicial functions of an international court.34 He also adds that there is a fourth possible source of
inherent powers, that is, general principles of law.35
Relying on the case law of international courts and tribunals and scholarship more
broadly, commentators have generally favored one of these four approaches to the sources of
inherent powers. First, some have argued that these powers stem from the judicial nature of the
adjudicative body itself.36 Second, another group of commentators has preferred to rely on the
doctrine of implied powers in international law and has derived inherent powers from the
unexpressed will of the drafters of the constitutive instrument establishing international courts
and tribunals.37 Third, others have claimed that inherent powers come from the need for
international courts and tribunals to fulfill their functions.38 Finally, a last group has derived them
from general principles of international law or from general principles of law recognized by
33 Austl. v. Fr., 1974 I.C.J ¶ 23.
34 Brown, supra note 7, at 838.
35 Id. at 841–42.
36 See, e.g., FITZMAURICE, supra note 30, at 770–71; Anthony Arnull, Does the Court Have Inherent
Jurisdiction?, 27 COMMON MKT. L. REV. 683, 700–07 (1990); Buteau & Oosthuizen, supra note 6, at 79 ("[W]here
the Statute is silent, the tribunal’s inherent power may be invoked nonetheless as a legal basis for resolving an issue.
This power automatically flows from the tribunal’s judicial nature and has been an inherent feature since its
creation.").
37 See, e.g., Lauterpacht, supra note 7, at 477–78; Martins Paparinskis, Inherent Powers of ICSID Tribunals:
Broad and Rightly So, in INV. TREATY ARB. AND INT'L L. 11, 14 (Ian A Laird & Todd Weiler eds., 2012).
38 See, e.g., Brown, supra note 7, at 841–42; Dinah Shelton, Form, Function, and the Powers of International
Courts, 9 CHI. J. INT’L L. 537, 571 (2009) (“While all courts, by virtue of being courts, have inherent powers derived
from their judicial functions – including the need for independence and control over the administration of justice –
each court’s specific functions are coupled with express and implied powers that are particularly important to
fulfilling that function. An understanding of the different functions and the implications of them for the type and
scope of implied powers is necessary to properly evaluate the work of the international judiciary.”).
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