Party autonomy is often said to be one of the cornerstones of international commercial arbitration. Although limits exist, it is safe to assume that party autonomy is an overriding principle throughout the arbitral process. This article discusses whether the same is true once the award has been rendered. It assesses the role of, and limits to, party autonomy at the post-award stage. More specifically, it examines whether, and to what extent, the parties can influence the review of the award made by national courts at the seat of the arbitration.
Parties dissatisfied with the award may start proceedings at the seat of the arbitration asking the court to vacate or set aside the award. Set-aside proceedings are governed by the law of the seat, including the grounds for a set-aside, and thus vary from jurisdiction to jurisdiction. Based on the principle of party autonomy, parties may try to influence the regime of set-aside proceedings in one of two ways. They may want to restrict review, either partially or fully excluding review by the courts at the seat. Alternatively, they may want to agree on more expansive review by adding to the existing grounds of review, possibly even providing for full review of the merits of the award.
The article examines the effects of parties’ agreements to expand or restrict the review of the award by national courts in set-aside proceedings. Section II gives an overview of the different solutions adopted in a number of jurisdictions around the world. In most of these countries, statutory provisions address the question of whether the parties may agree on a restricted review.