Introduction

 

Arbitration as a method of dispute resolution was well established under Roman law by the first century BC. Under Roman law the parties of a dispute entered into an agreement called a ‘compromissum’ to submit to arbitration abide by the Arbitration award.1 Arbitration is based on a mutual agreement with of both parties. The ability to determine the procedure of resolution of the dispute arise from the said agreement is named as party autonomy. “Party autonomy is the guiding principle in determining the procedure to be followed in an international commercial arbitration. It is a principle that has been endorsed not only in national laws but by international arbitration institutions and organizations. The legislative history of the model law shows that the principle was adopted without opposition….”2 Party autonomy makes the arbitration procedure flexible by enabling parties to determine the place of arbitration , number of arbitrators , language of arbitration and the applicable law  in the process of arbitration. Therefore party autonomy can be defined as a discretion given to parties in respect of resolving their disputes which is cheaper, flexible and effective but it should be noted that this resolution decision making power should be exercised in accordance with the law of the chosen arbitral institution. Though parties are free to choose the law some limitations are imposed by that chosen law’s mandatory requirements. Further desired law should be selected in good faith and should not be contrary to the public policies

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According to Article 19(1) of UNCITRIAL Model Law on International Commercial Arbitration, parties to an agreement are free to be followed by the arbitral tribunal in conducting the proceedings. However part autonomy proclaims that parties to the arbitration agreement are independent not only to choose laws but also to conduct the arbitration process. However this law is applicable to both domestic arbitration proceedings as well as arbitration proceedings conducted in Sri Lanka with one or more foreign parties which emphasize that the application of the law is not limited to the boundaries of the territory. Even in international level party autonomy is accepted principle, which is evident when referring in to the UNCITRIAL Model Act on International Commercial Arbitration and New York Convention but in the International level there are no public courts to resolve disputes arose in commercial arbitration. Though the Arbitration Act of Sri Lanka has not provided a definition for the arbitration, arbitration can be defined as a process of justice providing through a private decision maker, in another word an arbitrator. Arbitrator is empowered to make the decision in the process of arbitration by parties to the dispute by an arbitration agreement. The main focus of this term paper will be whether parties actually have the absolute freedom to determine the arbitration process? To what extent has this been achieved in the resolution of disputes having international concerns and whether the party autonomy is a myth or a reality.

 

Findings and issues

Party Autonomy plays an important role in arbitration procedure as it enables to select an applicable law, arbitrator, award etc. Arbitrator is the neutral party selected by parties to the dispute in process of arbitration. Arbitrator is obligated to act in manner which is impartial, practical and expeditious. When considering about the process of arbitration amendment to the claims are available if it is appropriate and is within the scope of the arbitration agreement. According to the Act both parties are given an equal opportunity to present their cases either in writing or orally.  If a one party fails to appear without giving reasons arbitration procedure will carried out with the available materials. 

The process of arbitration possesses certain characteristics as Arbitration Agreement, Dispute, reference to a third party and an Award. According to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, the agreement to arbitrate must be in writing, this is mainly to avoid the court intervention and also if it is written it shall be signed by the parties or if it is in means of telecommunication the agreement shall be recorded. This requirement is stated at the Sri Lankan Arbitration Act as well as UK Act. According to UK Act the agreement shall only be in writing but that “writing” is widely interpreted which includes the other means.  There are two types of Arbitration Agreement as Arbitration Clause which is drawn up and agreed before the dispute has arisen, and submission agreement which is made after the dispute has actually arisen. Key element to arbitration process is a Dispute which is capable of settling down through arbitration. If the arbitral dispute is contrary to the public policy then the arbitration process is not applicable3. This is stated under section 4 of the Sri Lankan Act. The next characteristic is referring to a third party which includes 3 people. The jurisdiction is decided by the agreement and rules of procedure are not a must. Rules of natural justice shall be followed at every instance. Finally the Award is granted. If the parties to the arbitration process reach a settlement then the arbitral proceedings may terminated and record the settlement in a form of an arbitral award on agreed terms. If the parties were not able to reach for a settlement arbitral tribunal record it in a form of written award and it is subjected to legal proceedings. Arbitration process generally begins with one party giving notice to the other party presenting their intention to arbitrate the dispute. That includes the nature and the basis of the proceedings, after receiving a certain time period the other party respond in writing indicating whether they agreed to resolve the dispute through arbitration. Party autonomy is visible at this point as parties having a chance to determine that they will seek arbitration remedies and not legal proceedings. Then the arbitration process begins, based on rules and procedures selected by the parties. Selection of the arbitrators is also done with the agreement of the both parties. After this, process is somewhat similar to courtroom trial. Parties make arguments before arbitrators, call witnesses and present evidence to establish and defend their respective cases. Once the hearing is concluded an arbitrator or panel is given a certain amount of time to consider the decision and give an award. So from the above mentioned facts it reveals that first few steps of the arbitration process upheld the party autonomy.

With the development of the technology as well as the transportation contracts tend to happen between parties from different countries without limiting to the same country partners. This aspect gives the international sense to the agreements. Such parties are free to determine any substantive law as the governing law of the contract according to their preference. But within the scope of general principles of international law. However to have an idea about the acceptance of the arbitration process internationally it is important to consider about different legal aspect of various countries regarding arbitration. One of the main concerns of UNCITRAL Model laws regarding party autonomy is promoting international commercial arbitration by limiting the use of national laws and court proceedings. They try to achieve it by giving priority to the need of the parties which allows them to choose any law which their dispute should be addressed. Model laws do not wish to limit the freedom of parties except few instances, requirement of written agreement can be taken as an example for it but one can argue that is also to give validity to the agreement and not a limitation. According to the Nigerian law the Arbitration and Conciliation Act 2004 govern the arbitration proceedings and arbitration rules, giving a vast importance to party autonomy. According to article 07 of the Nigerian Act parties are free to choose the applicable laws. Furthermore unless the parties have agreed dispute shall not refer to any court proceeding. Apart from that, parties are free to decide the number of arbitrators, their appointments and remove, place of arbitration and the language of the proceedings. The New York Convention is the UN Convention on the Recognition and Enforcement of foreign arbitral Awards. This is much concern about the foreign arbitral awards where the party autonomy is recognized in arbitration agreement. But at the same time some limitations are also imposed in the convention. International chamber of commerce Arbitration Rules 2012 is also similar to the New York convention, where it gives binding force to the arbitration award. ICC Rules maintain transparency, efficiency and fairness in the dispute resolution process while ensuring the party autonomy. Party autonomy under UK Act is limited to a certain extend than other countries. But anyway when the words are interpreted much space for party autonomy can be found in UK Act as well. Indian Arbitration Act is an example for Asian sense of party autonomy. It is also similar to the UK Act where it should be interpreted to get the favorable aspect to party autonomy. But Indian Act applies to arbitration which took place outside India including foreign awards unless parties expressly or impliedly exclude all or any of its provisions.4 Anyhow arbitration venue of arbitrators is free d to decide by the parties to the agreement. The concept of party autonomy is much upheld in Ghana as well. The general principle of the Act is party autonomy.  Act includes all the procedures to be followed in an arbitration process.

Before moving to the question whether whole concept of party autonomy is a myth or reality it is important to note the limitations of the party autonomy. New York convention and UNCITRAL Model Laws has become the most important source when making provisions for arbitration process. So the limitations to party autonomy are same in almost every document. That reveals when the Sri Lankan Act is revised, Modern Arbitration Act in Sri Lanka came in to force 1st August 19955 and it goes in line with the UNCITRAL Model Law for some extent but it has not incorporated the comprehensive UNCITRAL arbitration rules.  This Act repeals the Arbitration Ordinance (chapter 98) and section 693 to 698 of the Civil Procedure Code.   Some of the important Section to be found in the Arbitration Act has been discussed previously. Apart from them Section 24 is an important Section which is about the Law applicable to substance of dispute and how arbitral tribunal shall decide the dispute in accordance with such rules of law. General Justice and fairness of trade will be used in delivering judgments only if it is expressly authorized by the parties. There is a type of an agreement called exclusion agreements under this agreements parties waive rights of appeal to Supreme Court. Part II of the Act declares that the arbitration agreement must be in writing and parties who entered in to agreements in order to resolve their disputes have to prepare the agreement without contradicting the public policies and the should be a matter capable of resolving through the Arbitration6.  Further it can be said that Sri Lankan Act had enacted adhering to the rules of natural justice when referring in to the section 15(2) of the Act as it make mandatory to give a fair hearing to both parties and a chance to present their cases before the final decision .These mandatory requirements can be acknowledged as internationally recognized limitation as they can be found in either or both New York Contention and the UNCITRAL Model laws.

So when answering the question whether party autonomy is a myth or reality it is noteworthy to consider steps of the whole arbitration process. As mentioned above parties to arbitration agreement got the definite freedom to determine the process as how arises dispute shall be resolved. For an example they can alter the agreement according to their wish, they can change the law which will be a disadvantage to them finally they can come into a solution which is favorable to the both parties. But the frequently asked question is the absolute independence of the “party autonomy”. From the above mentioned facts it was revealed that there are certain instances where parties should adhere to an assured procedure, the problem is whether those procedures led reality of party autonomy to a myth. For an example Arbitration agreement must be written, this is  a core principle in every Act from all the  countries including the conventions as well and also Arbitration award too must be in writing and signed by the

Arbitrator and copy delivered to the parties, this requirement of in written can be known as a limitation in one hand. But when look into that requirement deeply it reveals that since the document is in writing it gives a validity which stabilize the process of arbitration so it is not fair to say that party autonomy is becoming a myth just because arbitration agreement need to be in written. Furthermore according to UNCITRAL Model Law arbitration process should always be within the limits of natural justice. This means rule against being biased and right to a fair hearing. It is mentioned in the Nigeria Arbitration and Conciliation Act 2004 also which is a copy of Article 18 of the UNCITRAL Model Law. 

Furthermore it was said each party shall be given all rights to present their case completely unless the finally given award will not be considered as a valid award. And also there is a well formed rule under every arbitration process which states judges shall not be appointed as arbitrators and an arbitrator shall never act as a judge.  Intervention of the courts is also sometimes being a reason for someone to argue that party autonomy is a myth but it should be noted that without the request of the either parties to the agreement court will never interfere into an arbitration process One could say above mentioned limitations are the best example to prove that party autonomy is a myth but at the same time it should be noted that those formed rules help arbitration process to proceed successfully.

 

Conclusion and recommendation

Finally it is common knowledge that arbitration process is far easier than general court proceedings.  And most people tend to select arbitration process because of the vast advantageous nature it got for an example most of the international trade transaction happen between more than two or three countries and it is not possible to solve a dispute among them without the help of arbitration process along with party autonomy. Most of the time arbitration process is selected because of the time and cost effective nature it possesses. And as mentioned above there are instances where whole concept of party autonomy is being called a myth, to avoid that idea it is recommended the arbitration process to be more practical and easy to follow with less court intervention. And also before entering to an arbitration agreement it is better if the parties are capable of having the knowledge on the process of arbitration. For instance, why the agreement need to be in written, why they had to follow natural justice rules and why they need to have a mutual understanding when drafting the clauses of the agreement and finally the importance of party autonomy concept. If that happens no one would mistake “party autonomy” as a myth. 

1 Lord Hacking D, ‘Arbitration in modern world ‘ 2002 66(3) The journal of the charted institute of Arbitrators

2 Red Fern and Blackuby Hunter , Law and practice of International Commercial Arbitration (4th edn, 2004) 315

3 Oberoi hotel v Asian hotel cooperation

4 Bhatia international v. bulk training.

5 K. Kanag – Isvaran PC and S.S. Wijeratne, “Arbitration Law in Sri Lanka”, pg. 35

6 Arbitration Act No 11 of 1995, s.4

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