The Doctrine Of Party Autonomy In International Commercial Arbitration: Myth Or Reality?

Abstract

The increased preference for arbitration has buttressed the growing
disenchantment for traditional adversary method of litigation. The
foundation of every arbitration proceeding is the arbitration agreement.
The parties’ agreement constitutes a contract to refer disputes, which have
arisen or may arise in future between them to arbitration. The freedom
of parties to consensually execute arbitration agreement is known as the
principle of party autonomy. The principle provides a right for the parties
to international commercial arbitration to choose applicable substantive
law and these laws when chosen shall govern the contractual relationship
of the parties. However, the pertinent questions have always been: Do
parties actually have absolute freedom to determine the arbitration
process? To what extent has this been achieved in the resolution of
disputes having international concerns? And lastly, is party autonomy a
myth or reality? These questions and many others have continued to
provoke discussions in many fora on the applicability of party autonomy
in international commercial arbitration. To find meaning to the above
questions, this article analyses the principle of party autonomy. The
ultimate aim of the article is to answer the question whether the practical
application of the principle of party autonomy is indeed a myth or reality?