Author: Luca G. Radicati di Brozolo*
Published: August 2012
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.
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 …
*Professor, Università Cattolica di Milano; Partner, Bonelli Erede Pappalardo, Milan-London.