Arbitrator’s Procedural Powers: The Last Frontier of Party Autonomy? - European International Arbitration Review (EIAR) - Volume 9 - Issue 2
Originally from European International Arbitration Review
Arbitration – and even more clearly international arbitration – is known as the legal field in which party autonomy reaches its highest expression. Indeed, the parties to a legal relationship not only decide voluntarily upon the selection of arbitration as the mechanism to settle their disputes, but they also agree on the functioning details of such mechanism. In this sense, they may define the subject matters submitted to arbitration, the concrete type of arbitration under which those disputes will be solved (ad hoc or institutional), the procedure to appoint arbitrators (and, of course, the arbitrators themselves), the seat of arbitration, the language of the proceedings, the law applicable to the merits of the case, and other procedural details. In other words, they set the framework and build their own dispute resolution process. In this sense, when it comes to arbitration, party autonomy does not end with the mere choice of one of the diverse available dispute settlement mechanisms; instead the parties’ will spreads – directly or indirectly – over every single element of the procedure. In sum, we find here a propitious area for the exercise of party autonomy.
Nevertheless, broad as it is, such party autonomy is not absolute even in this field and, like any other right, it has some limitations. Obviously, the better-known limits to party autonomy are those imposed by public powers based on policy reasons (contained in the applicable law). The most obvious expression of such limits consists in the definition of the matters for which arbitration is forbidden (arbitrability). Paradoxically, the will of the parties may occasionally find some limits without even leaving its own field. This is because there are other limits voluntarily established by the parties themselves, either expressly or implicitly. For instance, when the parties opt for institutional arbitration, they confine their party autonomy within the framework of the concrete rules of the selected institution (or at least those from which the parties cannot derogate). Therefore, we find here a clear area of limitations expressly or implicitly imposed to party autonomy.