Arbitrators have certainly the power – not the obligation – to ascertain the contents of the applicable law. They have the discretion to introduce new issues of law, i.e. issues that are indeed new and that appear material to the disposition of the case, but they must be cautious in so doing to respect fundamental principles of international arbitration. The ILA Resolution 1/2008 provides valuable guidelines in this respect. Especially, arbitrators must give parties the opportunity to be heard on the new issues. The maxim ‘jura novit curia’, in a fully fledged manner, is not generally considered as applicable to arbitrators. The challenge for arbitrators when judging on the merits is to fairly accomplish their jurisdictional mission while respecting party autonomy.
ASA Bulletin