Thomas Carbonneau is the Samuel P. Orlando Distinguished Professor of Law at Penn State's Dickinson School of Law. Professor Carbonneau is commonly regarded as one of the world's leading experts on domestic and international arbitration. He serves on the editorial board of La Revue de L'Arbitrage and is the author of ten highly acclaimed books and 75 scholarly and professional articles on arbitration. Professor Carbonneau was formerly the Moise S. Steeg Jr. Professor of International Law at Tulane University School of Law.
I. INTRODUCTION: CONTRACT’S EMPIRE IN ARBITRATION A universal principle of contemporary arbitration law is that contract plays a vital role in the governance of arbitration.1 The vitality of that role can vary by legal system, court, statute, or treaty.2 Nonetheless, party agreement often provides the most significant rules for regulating arbitrations and conducting arbitral proceedings.3 This is especially true in international commercial arbitration. There, the lack of a functional transborder legislative and adjudicatory process made contract the principal source of law for international commercial transactions and arbitrations. Although law-making is more possible within individual national legal systems, the rule of contract freedom is also firmly established in matters of domestic arbitration.4 Within legal systems, contract’s empire is founded upon a different rationale: in court doctrine, it serves to legitimate the privatization of adjudication by underscoring arbitration’s ostensibly voluntary character.5 Freedom of contract, therefore, is at the very core of how the law regulates arbitration. What the contracting parties provide in their agreement generally becomes the controlling law.