Originally from World Arbitration and Mediation Review (WAMR)

ABSTRACT

This article examines the complex interplay between party autonomy and mandatory institutional rules in international arbitration. While party autonomy is a fundamental principle of arbitration, arbitral institutions impose certain non-derogable rules that limit this autonomy. This article delves into the extent of derogation permitted by institutions of the institutional rules deemed mandatory by them and how it limits party autonomy. It builds on the existing scholarship of mandatory institutional rules and explores the means through which institutions seek to enforce such rules. The article identifies three categories of mandatory institutional rules: "flagship" or distinctive features of institutions, rules forbidding any amendment, and rules mirroring fundamental principles of international arbitration. The article analyzes the enforceability of these mandatory rules and explores three scenarios where parties attempt to derogate from them: after case registration, through stipulations in the arbitration agreement, and via hybrid arbitration clauses. When parties seek to override mandatory rules, institutions may either exceptionally allow

the derogation or refuse to administer the dispute. The article demonstrates that national courts generally do not compel institutions to administer disputes against their will, leaving parties to convert to ad-hoc arbitration or approach a different institution. The article concludes that while institutions must preserve their core procedural characteristics, excessive rigidity may undermine arbitration's flexibility, emphasizing the need for stakeholders to understand how institutions treat their mandatory rules to make informed decisions in arbitration proceedings. This article offers a unique contribution to the ongoing discussions in international commercial arbitration, especially regarding the role and powers of arbitral institutions.