Mandatory Rules and International Arbitration - ARIA - Vol. 23 No. 1 2012
Luca G. Radicati di Brozolo - Professor, Università Cattolica di Milano; Partner, Bonelli Erede Pappalardo, Milan-London.
Originally from American Review of International Arbitration - ARIA
I. THE PREVALENCE OF PARTY AUTONOMY IN CONTEMPORARY
ARBITRATION LAW: A PLACE FOR MANDATORY RULES?
Arbitration is the archetypical realm of party autonomy. Not only is it the
creature of party autonomy, in the sense that arbitration can only exist if it is
willed by the parties, it is also increasingly governed by rules which the parties are
free to fashion as they choose.
This is because over the years domestic legal systems have progressively
relinquished their hold over arbitration. Today to a large extent States allow the
participants in arbitration to choose the rules that will govern the procedure, as
well as those that govern the merits, without insisting that they adhere to the rules
of their respective legal systems. States also refrain from exercising a significant
level of control over the results of the arbitration at the setting aside and
enforcement stages. Furthermore, States even allow the parties to take their
arbitrations entirely outside their legal systems by choosing a foreign seat for the
arbitration, with the result that their courts and legal system lose practically all
ability to exercise control over the running and the results of the arbitration.1
The increasing role of party autonomy in arbitration does not have particularly
profound implications for the nature of arbitration, which remains a product of
legal systems or at least, from a more pragmatic perspective, is subject to the
tolerance of States and requires their support and collaboration to function. If
arbitration is to operate meaningfully, state courts must be prepared to enforce
arbitration agreements and to stay actions brought before them in violation of such
agreements. They must also lend their coercive powers to enforcing awards that
are not complied with voluntarily by the losing party and be prepared to give their
assistance when party autonomy proves insufficient (for example at the stage of
the formation of the tribunal).
However, none of this significantly detracts from the fact that States are
willing to recognize a very broad scope to party autonomy in all phases and
aspects of arbitration. Because party autonomy is antithetical to mandatory rules,
this conclusion could signify that mandatory rules have no role to play in