International Commercial Arbitration and Party Autonomy

Abstract

International Commercial Arbitration flows from the decision of two or more parties to subject themselves an agreement that helps them avoid litigation. The parties’ agreement entails a contract between them to refer any disputes to arbitration including arbitrations conducted online, which s speedy, inexpensive and global in nature. Therefore, parties’ freedom to enter into such a contract is what is referred to as party autonomy. It allows the parties to an international arbitration the power to decide the substantive law that will govern the arbitration and the contractual relationship between them. Further, parties are at liberty to decide the language of arbitration, appointment of arbitrators, and the seat of arbitration. Although party autonomy has been recognized by various international instruments and supported by different national courts, it is definitely not absolute. In fact, there is a thin line between party autonomy in international commercial arbitration and complete autonomy. A balance must be struck to maintain the flexibility of the doctrine of party autonomy. If you are seeking guidance in this area, consider seeking professional assistance from experts in law dissertation help.

Notably, there is not much difference between traditional arbitration and the one conducted online. The same laws and principles applicable to traditional arbitration are also applied in online arbitration. In theory, the national courts’ role is perceived as supportive but the reality is that there are instances when they have adopted interventionist approaches to arbitration cases. Notwithstanding the platform where arbitration is conducted, the big issue is the extent of the independence of arbitration process. How far can the parties’ autonomy be limited? This is the question that this paper seeks to address by critically examining judicial precedents, international instruments and scholarly writings.

Annotated Bibliography

Fagbemi SA, The doctrine of party autonomy in international commercial arbitration: myth or reality? (Journal of Sustainable Development Law and Policy 2015)202-46.

This article explores the importance of arbitration agreements international commercial transactions, the sources of the principle of party autonomy, rationale for the doctrine and lastly the limitations. The author further weighs the efficacy of court intervention in arbitration cases in comparison with the doctrine of party autonomy. He further contends that the doctrine is a powerful tool in the hand of the parties to arbitration that should be used responsibly. In instances where the doctrine is abused by one powerful party to arbitration, the author believes that it is appropriate for courts to intervene.

Consequently, this source is relevant to my research area because it touches on key themes that are at the core of my paper. Specifically, the author’s argument about the rationale of intervention is reasonable and resonates with my views on the conduct of online arbitration. Because this article largely supports my work, it will appear in several paragraphs to highlight key arguments.

Cordero-Moss G, 'Limits To Party Autonomy In International Commercial Arbitration' (2017) 4 Oslo Law Review

This source traces the doctrine of party autonomy and the underlying limitations. In particular the writer looks at the exercise of discretion by arbitral tribunals where they do not accept parties’ arbitration agreement. The author also discusses various international instruments including the Arbitration Act of UK, UNCITRAL Model Law, International Chamber of Commerce Rules and the New York Convention, and their relevance to independence of arbitration processes. The perspective taken in this article is interesting because arbitration is covered in such a way that it takes into account the role of arbitrators and national courts in enhancing party autonomy.

The author further considers situations where parties may have not defined the procedural issues of the arbitration and the underlying discretion by the arbitrators. This

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1. Sunday A Fagbemi, 'The Doctrine Of Party Autonomy In International Commercial Arbitration: Myth Or Reality?' (2016) 6 Journal of Sustainable Development Law and Policy (The).

work is intricately connected to my research because it helps build some of my arguments on the doctrine of autonomy and the permissible curtailments of that freedom. I will mostly paraphrase the relevant portions of this work rather than using quotes to make the necessary points.

Cordero-Moss G, Limits on Party Autonomy in International Commercial Arbitration [2015] Penn State Journal of Law &International Affairs 187

This journal article begins by asserting that party autonomy is absolutely necessary in international commercial arbitration. Having said that, the author concedes that there instances that warrant interference with the self-sufficiency of the arbitration agreement. In essence, the author agrees that such derogation will be permissible where: parties disagree on the legal framework; legal framework is ambiguous, pubic interest is affected or parties disagree on the legal framework. The principal argument here is that, contrary to widespread perception, arbitration agreements are not self-sufficient.

The article supports my research topic and in particular my proposition that judicial control on arbitration is necessary and inevitable albeit with some restrictions. To integrate the above into my work I will reduce the relevant parts into my own words and include it into my work noting to reference the source as well in compliance with academic honesty guidelines. Further, this work will feature in several paragraphs of my research because of its deep connection to my arguments.

Malacka M, 'Party Autonomy In The Procedure Of Appointing Arbitrators' (2017) 17 International and Comparative Law Review

Malacka recognises that arbitration agreements are basically contractual in nature and parties freely submit to the process just as prescribed by freedom of contract. They admit that the doctrine of party autonomy is the cornerstone of international commercial arbitration. For that reason it ought to be jealously guarded against unnecessary curtailment lest arbitration turns out to be just litigation but with a different name. While

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Giuditta Cordero-Moss, 'Limits To Party Autonomy In International Commercial Arbitration' (2017) 4 Oslo Law Review.

Giuditta Cordero-Moss, 'Limits To Party Autonomy In International Commercial Arbitration' (2015) Penn State Journal of Law &International Affairs 187

acknowledging that the doctrine is not absolute and some instances are more than acceptable, the authors impute that it enhances the certainty and predictability of the award.

In the same vein, my research topic delves into the merits and demerits of the doctrine of party autonomy in relation to its limitation. Because of it relates to a small chunk of my paper, I will only use this article in a few paragraphs. In doing this, I will use one or two quotes to bring out key points without losing the effect and meaning of the authors’ words

Kyung-Han Sohn, 'Arbitral Autonomy: The Concept And Scope' (2012) 24 SungKyunKwan Law Review

Kyung-Han Sohn discusses the place of party autonomy in international arbitration in the context of arbitral provisional measures. The author looks at the essence of party autonomy and its application in England. His discussion of the doctrine is insightful considering that paper considers various judicial decisions that provide a perspective on the attitude of United Kingdom and other jurisdictions towards self-sufficiency and the existing limitations. In his discussion, he covers the different prevailing theories in support of the self-sufficiency doctrine and further proposes reforms to the English approach in relation to application of the Arbitration Act.

I will incorporate the key parts of this article, especially those in consonance with my paper into reasonable number of paragraphs. The article is uniquely relevant to my research because it review and discusses various case laws that provides a preview of the national jurisdictional response to the said doctrine. In this case, I am considering using quotes to underscore important pronouncements by judges of relevant courts.

General Bibliography

Cordero-Moss G, Limits on Party Autonomy in International Commercial Arbitration [2015] Penn State Journal of Law &International Affairs 187

Cordero-Moss G, 'Limits To Party Autonomy In International Commercial Arbitration' (2017) 4 Oslo Law Review

Fagbemi SA, The doctrine of party autonomy in international commercial arbitration: myth or reality? (Journal of Sustainable Development Law and Policy 2016)202-46.

Kyung-Han Sohn, 'Arbitral Autonomy: The Concept And Scope' (2012) 24 SungKyunKwan Law Review

Malacka M, 'Party Autonomy In The Procedure Of Appointing Arbitrators' (2017) 17 International and Comparative Law Review

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