Originally from Handbook on International Commercial Arbitration - Second Edition

Preview Page

A cardinal principle in arbitration is party autonomy. Essentially, it is the right of self-determination—as Article 19(1) of the UNCITRAL Model Law provides: “Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.”

Leaving to one side theoretical rather than practical problems, before a dispute has arisen the parties are generally free to agree on whatever dispute resolution system they wish. National laws may prohibit clearly one-sided agreements from surviving. For example, in England, §33 of the Arbitration Act 1996 provides that “The Tribunal shall . . . act fairly and impartially . . . giving each party a reasonable opportunity of putting his case and dealing with that of his opponent . . .” So if an arbitration clause purported to give only one side the opportunity of addressing the arbitrator, such provision would be invalid.1 The parties also cannot agree on something that is fundamentally inconsistent with the laws of the seat of the arbitration.2