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25 J. Int'l Arb. 529 (2008)
Party Autonomy in International Commercial Arbitration: Popular Fallacy or Proven Fact

handle is hein.kluwer/jia0025 and id is 539 raw text is: Journal of International Arbitration 25(5): 529-535, 2008.
0 2008 Kluwer Law International. Printed in The Netherlands.
Party Autonomy in International Commercial
Arbitration: Popular Fallacy or Proven Fact?
Parties to cross-border disputes are developing a preference for international commercial arbitration as a desired
alternative to litigation in the national courts. This trend owes much to the popular pro-arbitration belief
that arbitrating parties are granted the autonomy to control their own decision-making process. But is this true?
This article explores whether party autonomy is achieved in practice in international commercial arbitration
or whether the parties still find themselves burdened with quasi-litigious constraints. Upon considering
the experience of international parties from an Australian and English perspective, this article finds that the
restrictions imposed on parties to international commercial arbitration have developed so as to protect the
freedoms they can exercise in the process.
The concept of party autonomy and the promise that parties to international
arbitration are free to control their process has contributed greatly to promoting
arbitration as the most desirable means of dispute resolution in a cross-border context.
However, arguably the strongest advantage conferred upon international parties in
choosing arbitration over other methods of dispute resolution is that parties can enforce
foreign awards more easily than they can foreign judgments.'
To ensure the international acceptance of foreign awards, the law of international
commercial arbitration imposes limited exceptions on party autonomy in the interests of
preserving the integrity of the arbitral process. These discrete carve-outs remain consistent
with a definition of party autonomy which upholds the parties' freedom to choose
almost all aspects of the arbitral process without having their choices constrained.
Unlike litigation, international arbitration is heralded as a flexible and autonomous
process to resolve disputes between international parties according to the procedures and
laws of their choice. Although other forms of alternate dispute resolution to litigation
may offer similar flexibilities, no alternative also provides international parties with an
enforceable decision at the conclusion of the process. As a result, international arbitration
* Mia Louise Livingstone is a lawyer in Commercial Dispute Resolution at Baker & McKenzie in Melbourne,
IHon. MrJustice Kerr, InternationalArbitration and Litigation,J. Bus. L. 197, May 1980.
Copyright 2007 by Kluwer Law International. All lights reserved
No claims asserted to original government works

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