Originally from Limits to Party Autonomy in International Commercial Arbitration

— Chapter 4 —

Inarbitrability: A Ghost Hovering over Europe?

Francesca Ragno

It is well established that the so-called “procedural party autonomy,” which provides parties in a legal relationship with the “freedom to choose the forum – public or private – for the resolution of disputes arising under the contract or, more widely, in the relationship between [them]” is a widely accepted principle in international litigation.

If the principle of procedural party autonomy were to be taken seriously, one could infer an unrestricted freedom for the parties to submit any international dispute to arbitration. However, this possibility is merely hypothetical, since it does not take into account that “national laws often impose restrictions or limitations on what matters can be referred to and resolved by arbitration.” Restrictions to (procedural) party autonomy and, more specifically, limits to the parties’ freedom to choose arbitration as the method to settle their disputes relates to the notion of “objective arbitrability” or “arbitrability ratione materiae,”