Originally from Czech and Central European Yearbook of Arbitration - 2012: Party Autonomy versus Autonomy of Arbitrators

The autonomy of the arbitration agreement is recognized as a fundamental principle of international commercial arbitration. Initially, the concept of autonomy was elaborated to reinforce an arbitration clause, duly executed by the parties, despite the possible invalidity of the underlying contract. Although this clause was considered to be a contractual provision, it retained its independence from the contract due to the specific goals sought by the parties. In time this principle became so embedded in the minds of academics and practicing lawyers that the link between the arbitration clause and the underlying contract ceased to attract their attention. Anxiety over arbitration provisions was transformed into the overzealous belief in their domination over other contractual terms. As a consequence, the various obstacles put up by national legal instruments to prevent unfair tricks in international business transactions were overcome by inclusion of the arbitration clause, which entails the settlement of disputes not in a public, but in a private manner. The aim of the following paper is to demonstrate the unjustifiably broad application of the arbitration agreement’s autonomy by examining relevant cases in arbitration and judicial practice.