It is almost a truism, that arbitration is the creature of consent. Given
the large discretion recognized by virtually all international conventions,
national statutes and arbitration rules to the parties in forging the arbitral
process as they deem fit, party autonomy may be considered not only as a
source of arbitration law, but also as its guiding principle. Arbitral
practice and national courts also recognize the principle in broad terms.
It is commonly observed that party autonomy has a larger role in
international arbitration than in domestic proceedings. Jurisdictions
which adopt a separate legal regime for international arbitration tend to
give parties to international disputes a greater deal of leeway in
regulating the process.
The area in which party autonomy plays the largest role is the
procedure. One of the main advantages of international arbitration is that
parties may dispense with the formalism and technicalities of national
court proceedings, and instead may freely shape the procedure in
accordance with their specific needs.
Institutional arbitration rules implicate party autonomy in at least two
ways. The first is through their very nature and application. The rules
apply insofar as the parties referenced them in their arbitration agreement
(or, in rare cases, at a later stage, after the dispute arises). Institutional
rules have a contractual, and not a legal basis. Therefore, the parties’
freedom to agree to arbitration pursuant to arbitration rules is itself an
expression of the will of the parties, who can refer to a pre-established
set of procedural and administrative norms as an alternative to directly
regulating the various aspects of the process in ad hoc proceedings. This
freedom is recognized by virtually all legal systems and is made explicit
in many national arbitration statutes.