An Arbitrator's View: Can Party Autonomy Hinder Procedural Efficiency - Ten Years of Swiss Rules of International Arbitration - ASA Special Series No. 44

Author(s): 

Rudolf K. Fiebinger

Christoph Hauser

Page Count: 

14 pages

Media Description: 

1 PDF Download

Published: 

October, 2014

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Originally from Ten Years of Swiss Rules of International Arbitration - ASA Special Series No. 44

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1. INTRODUCTION

International commercial arbitration offers parties a number of

advantages over litigation before national courts. In choosing

arbitration, parties to a contract are to a large extent free to decide

numerous aspects of the resolution of possible disputes arising out of

their business relationship, such as the arbitrators, the language and

the seat.1 These can be very important issues to parties to international

contracts and, in practice, they are, especially considering that the use

of arbitration clauses is today more popular than ever.2 From the point

of view of an arbitrator, the procedural rules according to which a

dispute is resolved can mean a number of constraints. In particular,

various sets of rules give arbitrators different scopes of discretion in

deciding the conduct of the proceedings. While most arbitration rules

stipulate the primacy of any agreements between the parties on

particular issues, some omit such wording. While this does not

constitute a wanton license for arbitrators to disrespect the parties’

will, it does play a psychological role in that it strengthens an

arbitrator’s position in discussing procedural points with the parties.

In any case, overriding an agreement of the parties would not

withstand a later challenge of the award: national procedural laws and

the New York Convention allow for the setting aside or refusal of

enforcement of arbitral awards which are the result of arbitrators not

respecting the procedural agreement of the parties to the proceedings.3