Limits to Party Autonomy in International Commercial Arbitration
Courts and commentators have often stated that in arbitration “party autonomy is everything.” In effect, where the adjudicative power does not rest on party autonomy, there is no arbitration. But the papers published in this book, which were presented at a conference hosted by NYU’s Center for Transnational Litigation, Arbitration and Commercial Law that took place in September 2015, show that while party autonomy may trigger everything, meaning the steps necessary for one to be able to speak of arbitration, it is not itself everything. Party autonomy is limited, as the papers published here clearly show. As soon as the arbitration proceedings are initiated, the parties lose at least part of their autonomy, and the issue arises of who really owns the arbitration proceedings. The further the arbitration proceeds, the more limits party autonomy encounters.
Chapter 1 Limits to Party Autonomy and Institutional Rules
Andrea Carlevaris
Chapter 2 Party Autonomy, the “Right” to Appoint, and the Rise of Strategic Challenges
Brian King
Chapter 3 Limits to Party Autonomy in the Composition of the Arbitral Panel
George A. Bermann
Chapter 4 Inarbitrability: A Ghost Hovering over Europe?
Francesca Ragno
Chapter 5 Party Autonomy in relation to Competence-Competence
Stefan Kröll
Chapter 6 Arbitrator’s Procedural Powers: The Last Frontier of Party Autonomy?
Diego P. Fernández Arroyo
Chapter 7 Private Preference, Public Process: U.S. Discovery in Aid of Foreign and International Arbitration
Kevin E. Davis, Helen Hershkoff, and Nathan Yaffe
Chapter 8 The Arbitral Tribunal’s Power in respect of the Parties’ Pleadings as a Limit to Party Autonomy, On Jura Novit Curia and Related Issues
Giuditta Cordero-Moss
Chapter 9 Party Autonomy and the Rules Governing the Merits of the Dispute in Commercial Arbitration
Luca G. Radicati di Brozolo
Chapter 10 Limits to Party Autonomy, Good Faith, Fair Dealing and International Commercial Arbitration
Filip De Ly
Chapter 11 Party Autonomy and Public Policy Awards by Consent
Domenico Di Pietro
Chapter 12 Limits to Party Autonomy Imposed by European Mandatory Law
Inka Hanefeld
Chapter 13 Limits to Party Autonomy to Protect Weaker Parties in International Arbitration
Friedrich Rosenfeld
Chapter 14 Limits to Party Autonomy at the Post-Award Stage
Maxi Scherer and Linda Silberman
Editor:
Franco Ferrari is a Professor of Law and the Director of the Center for Transnational Litigation, Arbitration and Commercial Law at New York University School of Law. Prof. Ferrari joined NYU on a full-time basis in September 2010, after serving as visiting professor for various years. Previously, he was chaired professor of comparative law at Tilburg University in the Netherlands and Bologna University as well as professor of international law at Verona University in Italy. After serving as member of the Italian Delegation to various sessions of the United Nations Commission on International Trade Law (UNCITRAL) from 1995 to 2000, he served as Legal Officer at the United Nations Office of Legal Affairs, International Trade Law Branch (2000-2002), with responsibility for numerous projects, including the preparation of the UNCITRAL Digest on Applications of the UN Sales Convention (2004 edition). Prof. Ferrari has published more than 280 law review articles in various languages and 17 books in the areas of international commercial law, conflict of laws, comparative law and international commercial arbitration. He is a member of the editorial board of various peer reviewed European law journals (Internationales Handelsrecht, European Review of Private Law, Contratto e impresa, Contratto e impresa/Europa, Revue de droit des affaires internationales). He also acts as arbitrator both in international commercial arbitrations and investment arbitrations.
Contributing Authors:
George A. Bermann
Andrea Carlevaris
Giuditta Cordero-Moss
Kevin Davis
Filip De Ly
Domenico Di Pietro
Diego P. Fernández Arroyo
Inka Hanefeld
Helen Hershkoff
Brian King
Stefan Kröll
Luca Radicati di Brozolo
Francesca Ragno
Friedrich Jakob Rosenfeld
Maxi Scherer
Linda J. Silberman
Nathan Yaffe
Editor:
Franco Ferrari is a Professor of Law and the Director of the Center for Transnational Litigation, Arbitration and Commercial Law at New York University School of Law. Prof. Ferrari joined NYU on a full-time basis in September 2010, after serving as visiting professor for various years. Previously, he was chaired professor of comparative law at Tilburg University in the Netherlands and Bologna University as well as professor of international law at Verona University in Italy. After serving as member of the Italian Delegation to various sessions of the United Nations Commission on International Trade Law (UNCITRAL) from 1995 to 2000, he served as Legal Officer at the United Nations Office of Legal Affairs, International Trade Law Branch (2000-2002), with responsibility for numerous projects, including the preparation of the UNCITRAL Digest on Applications of the UN Sales Convention (2004 edition). Prof. Ferrari has published more than 280 law review articles in various languages and 17 books in the areas of international commercial law, conflict of laws, comparative law and international commercial arbitration. He is a member of the editorial board of various peer reviewed European law journals (Internationales Handelsrecht, European Review of Private Law, Contratto e impresa, Contratto e impresa/Europa, Revue de droit des affaires internationales). He also acts as arbitrator both in international commercial arbitrations and investment arbitrations.
Contributing Authors:
George A. Bermann
Andrea Carlevaris
Giuditta Cordero-Moss
Kevin Davis
Filip De Ly
Domenico Di Pietro
Diego P. Fernández Arroyo
Inka Hanefeld
Helen Hershkoff
Brian King
Stefan Kröll
Luca Radicati di Brozolo
Francesca Ragno
Friedrich Jakob Rosenfeld
Maxi Scherer
Linda J. Silberman
Nathan Yaffe
Chapter 1 Limits to Party Autonomy and Institutional Rules
Andrea Carlevaris
Chapter 2 Party Autonomy, the “Right” to Appoint, and the Rise of Strategic Challenges
Brian King
Chapter 3 Limits to Party Autonomy in the Composition of the Arbitral Panel
George A. Bermann
Chapter 4 Inarbitrability: A Ghost Hovering over Europe?
Francesca Ragno
Chapter 5 Party Autonomy in relation to Competence-Competence
Stefan Kröll
Chapter 6 Arbitrator’s Procedural Powers: The Last Frontier of Party Autonomy?
Diego P. Fernández Arroyo
Chapter 7 Private Preference, Public Process: U.S. Discovery in Aid of Foreign and International Arbitration
Kevin E. Davis, Helen Hershkoff, and Nathan Yaffe
Chapter 8 The Arbitral Tribunal’s Power in respect of the Parties’ Pleadings as a Limit to Party Autonomy, On Jura Novit Curia and Related Issues
Giuditta Cordero-Moss
Chapter 9 Party Autonomy and the Rules Governing the Merits of the Dispute in Commercial Arbitration
Luca G. Radicati di Brozolo
Chapter 10 Limits to Party Autonomy, Good Faith, Fair Dealing and International Commercial Arbitration
Filip De Ly
Chapter 11 Party Autonomy and Public Policy Awards by Consent
Domenico Di Pietro
Chapter 12 Limits to Party Autonomy Imposed by European Mandatory Law
Inka Hanefeld
Chapter 13 Limits to Party Autonomy to Protect Weaker Parties in International Arbitration
Friedrich Rosenfeld
Chapter 14 Limits to Party Autonomy at the Post-Award Stage
Maxi Scherer and Linda Silberman