Below is the abstract for “Jettisoning the Principle of Party Autonomy in Modern International Commercial Arbitration: Menace to an Unprecedented Precept,” available for download on SSRN.

This paper focuses on conflict as to the choice of law in international commercial arbitration. Two possible scenarios can be analyzed that make it difficult to provide the choice of law in international commercial arbitration. This occurs when the parties make an explicit or implicit choice of applicable law/rules in their arbitration agreement, and when the parties are completely silent as to the applicable law. Nevertheless, it is common in international arbitration that the parties ignore or fail to assign applicable laws to their arbitration. In that case, the matter is left to the tribunal or national courts to assign that law. However, there exists the right to choose substantive or procedural law often referred to as party autonomy. Most parties entering into arbitration agreements believe that once a choice of law is made, that law exclusively determines the legal framework between the parties. However, this overlooks the fact that circumstances remain in which an arbitrator will be required to apply rules arising from a legal regime other than that one chosen by the parties.

There exist in fact numerous restrictions which in different ways limits the parties´ choice of law. If we were to jettison the principle of party autonomy, what system of law or legal rules should be chosen as the procedural and substantive law applicable to the parties’ contractual relationship? In analyzing this, we sought the provisions of texts on international commercial arbitration as well as decided cases. Our findings reveal that though immense endeavors have been made by national and international legislators to resolve choice of law complexities, more still need to be done. Jettisoning the principle of party autonomy in modern international commercial arbitration undoubtedly results to an undertone of menace, which is a restriction on party autonomy.



Alliance for Social Inclusion and Development

PEFELA Gildas NYUGHA is an external legal officer at the Alliance for Social Inclusion and Development and a lecturer at Institut Superieur des Science de L’entreprise. His research interests include Company Law, Human Rights, International Trade, Criminal Law/Procedure, Insurance Law, Corporate Governance, Common Law, Environmental Law, and Medical Law.