This contribution addresses the role of party autonomy in determining the substantive rules to be applied by the arbitrators in deciding the merits of the dispute. In essence, it seeks to establish what limits there are, or should be, to the freedom of the parties to commercial transactions to determine their respective rights and obligations when the transactions are submitted to arbitration.
As will be seen, of all matters pertaining to arbitration, the determination of the rules governing the merits is probably the one in relation to which party autonomy is most far-reaching. It is also the one that most acutely raises the issue of the role of the law in the governance of private transactions and of the relation between the law and party autonomy.
I. The Different Scope of Party Autonomy in the Designation of the Rules Governing the Merits in Domestic and International Court Litigation and in Arbitration
The scope of party autonomy in relation to the determination of the rules governing the substance of the dispute varies considerably depending on the context and on the applicable dispute settlement mechanism.