One of the attractive founding principles of Arbitration as a method of dispute resolution is ‘Party Autonomy’. The term generally means autonomy of the parties to decide on all arbitration procedures. The parties choose arbitration as a private dispute settlement and arrange hearings and select an arbitrator who has experience and expertise in the required relevant field. The principle of party autonomy mainly entails free-will in associations between private parties in the sense that they are legally capable of freely acting without any judicial or bureaucratic interference.
In the exercise of their autonomy, the parties give the arbitrator the power and duties to resolve the dispute. They may choose formal, informal, adversarial, inquisitorial, oral or written procedure through which the arbitration will be conducted. The scope of the concept can be examined as having two perspectives – Before the Arbitration Process commences and during the Arbitral Proceedings.
Before the Commencement
Arbitration is the creature of a contract. It is the by-product of an agreement between the parties. Since arbitration is a contract, it involves making of offer by one party and the acceptance by the other with the intentions to be bound by the obligation imposed by the agreement. In order for a dispute being subject to arbitration, parties exclude the jurisdiction of the courts by adding an Arbitration Clause in their agreement.
The Agreement has a direct bearing on all the stages of arbitration. During the drafting of the clause, the parties enjoy a considerable amount of freedom and flexibility in defining the scope of the contract.
The parties can get the best result in case of a well-drafted arbitration agreement. The agreement defines the subject matter of the dispute, law applicable to the arbitration agreement, the law governing the arbitration agreement, the law governing the arbitration process, the place/seat of arbitration, law applicable to the substance, etc.
After the Commencement of the Proceedings
Arbitral Proceedings are either ad-hoc or are carried out under some institution. After the dispute comes into existence, the parties exercise their autonomy in the appointment and constitution of the tribunal. All the national laws contain provisions as to the appointment, the challenge of the independent and impartial arbitrator. Further, the parties decide the power & duties of the arbitrator. The powers to be granted should be within the boundaries of law chosen by the parties. Most common challenges that Party Autonomy encounters range from public policy to equal treatment of the parties to the intrusion of the national courts.
