The author is the chair for international business law, Cologne University; president of the London Court of International Arbitration; panel chairman of the United Nations Compensation Commission; chairman of the German Institution of Arbitration; and the former president of the Iran-United States Claims Tribunal, 1984-1988. This paper was originally presented at the 13th Joint Colloquium of the ICC International Court of Arbitration, the American Arbitration Association, and the International Centre for the Settlement of Investment Disputes, held November 15, 1996 in New York City.
There is wide recognition today in international treaties, international legislation and court decisions, as well as arbitral practice, of party autonomy. Limits on such autonomy are, however, imposed by mandatory provisions of international or national law, or of institutional arbitration rules regarding the procedure. “...the trend of modern national as well as international legislation on conflict of laws and on arbitration leans clearly in the direction of a maximum of party autonomy.”
When we speak about “party autonomy” a comment on terminology is required, because the term is used in different ways. Sometimes it is used in the more limited sense of conflict of laws as the autonomy of the parties to choose the applicable law1. Sometimes it is used much more generally as the autonomy of the parties to decide on all aspects of an international arbitration procedure, subject only to certain limitations of mandatory law2. This article uses the term in this latter sense.