Excess of Powers in International Commercial Arbitration: Compliance with the Arbitral Tribunals Mandate in a Comparative Perspective

Although the idea of arbitral tribunals mandate is in everyday use in the international arbitration scholarship, it remains an elusive concept lacking any legal definition. Often associated with other notions such as the tribunals mission, powers, authority or even jurisdiction, the meaning of arbitral tribunals mandate remains a moving target and escapes easy classification.

Yet, perhaps somewhat surprisingly, a non-compliance with the arbitral tribunals mandate provides a basis for a challenge of the arbitral award at the post-award stage (either during setting aside proceedings or at the enforcement stage). Since the concept of the tribunals mandate is vague, it attracts, in turn, a broad interpretation of the ground leading to a frustration of the fundamental value of arbitration the finality of the arbitral award.

It is therefore essential to determine how the national courts review arbitral awards on the basis of excess of mandate and consequently in what instances  they accept the argument that the tribunal acted in violation of its mandate. This study aims at recognizing the similarities and differences of the excess of mandate type of challenges in selected legal systems (namely  the UNCITRAL Model Law, France, England, the U.S. and the New York Convention).

Looking through the eyes of what the selected legal systems consider to be an excess of mandate allows us to identify common features and contributes to a better understanding of the concept of the arbitral tribunals mandate by arbitrators, judges and legal practitioners alike. Accordingly, this research adds a building block to the definition of the tribunals mandate.