A CRITICAL EVALUATION OF THE SIGNIFICANCE OF PARTIES’ CONSENT

AND LIMITATION ON PARTIES’ AUTONOMY WITH REGARDS TO

INTERNATIONAL COMMERCIAL ARBITRATION.

1. Introduction
Arbitration is a process used worldwide to resolve disputes in both national and international
domain international commercial arbitration solves disputes in context to investment,
commerce and international trade.1 Being a particular kind of procedure which is not for
populace as it has expertise as judges for giving an award as results, which is way simpler to
implement then court judgements, conceivably settlement of international disputes is way
more cheaper and confidential where parties choose their own arbitrators in any neutral
country with their choices.2 The only obligation to be authorized the method of arbitration in
lieu of litigation is agreement of two or more parties.3International commercial arbitration has
given enormous authority to the parties in resolving disputes faced in commercial arbitration
as it differs from conventional litigation and therefore, goes forward to say that the basic
aspect for conducting the proceeding is the will of the party with an arbitration agreement
which is well drafted and should meet a validated requirement like in writing,4 there are
many elements that make up an international arbitration but the five most important elements
are as follows “the agreement to arbitrate, the need for a dispute, the commencement of an
arbitration, the arbitral proceedings, the decision of the tribunal and the enforcement of the
award.”5 Contractual or non-contractual disputes that evoked due to their legal relationship.6
The method of arbitration therefore, should be able to settle the matter and parties should
have legal efficacy to enter into agreements,7 not being defective or void and is capable of
being used in arbitration agreement,8 as parties can get the best result from arbitration and the
fundamental law of arbitration is the agreement of parties and their consent.9 The fact that
parties having all the rights brings out both advantages and disadvantages in this field of
arbitration where question arise about limiting party autonomy. Party autonomy is the basic
root of functioning the arbitration process in international commercial arbitration, since
without the agreement of the parties no tribunal can function.
This essay therefore seeks to analyse the significance of parties’ consent in International
Commercial Arbitration. It also seeks to determine whether there should be a limitation on
parties’ autonomy with regards to International Commercial Arbitration.

1 Alan Redfren and Martin Hunter,’ Redfern and Hunter on International Commercial Arbitration’ (5th edn,
Oxford University Press 2009) para 1.01
2
Ibid (n 1) para 1.05.
3
Johanna Maxson, ‘Binding Non-signatories to Arbitration agreement’ (2009)
th
https://unov.tind.io/record/42230?ln=en> accessed 20 January 2016.
4
New York Convention Art II (I); UNCITRAL Model Law Art 7 (1).
5
Ibid (n 1) pg12.
6
New York Convention Art II (I).
7
UNCITRAL Model Law Art 8(1) & 36(1).
8
New York Convention Art II (3).
9
Ibid (n 3).
 2. The Significance of Consent.
Consent is a term with various meaning and is also called a “polymorph term.” 10 It has been
the mode for contract law and the capacity to enter into it effects the consented parties, as
they can rely on the contract.11 Also, in the legal dictionary it is said that “Consent is an act
of reason and deliberation” when one party voluntarily accepts to a plan of another party for
an offer or an infringement that shall occur is said to be consent. 12 The principal of parties
consent in international commercial arbitration plays a high role in the subject of in the
subject of characterizing an arbitration agreement by the parties as consent becomes an
essential factor for the parties and they have to make a basic agreement on their consent in
resolving their dispute caused by arbitration as there can be no valid contract without it.13
There are many groups and companies that have analysed that the main method of arbitration
is consent as it has been always been an element for law of contract as the parties have a free
will to enter into the contract and make a safe contract context as consent is the key factor of
any contract 14 Since the foundation of arbitration consent has prevailed by giving the
procedure a legitimacy and being well informed about its nature and structure. It is a simple
method of offer and acceptance where the identity of the parties and their consent play a
major role.15 The other significance of the parties consent is that the parties cannot
unilaterally withdraw after giving their consent validly to an agreement. Hence, there cannot
be any arbitration without an arbitration agreement.16 Parties consent is deliberated in a way
that after a party has agreed to arbitration, his right to litigate the benefit of the dispute is lost.
Consent should be made accurately and the parties’ intentions should be made clear by
simple words in the drafted contract.17 In the case of First options of Chicago, Inc. v
Kaplan,18 it was held that the court should not assume the consent of parties without evidence
and arbitration should be based upon direct consent of parties, which confirms the freedom
and strength of an individual as one is free to agree or disagree to make a contractual
arbitration agreement.19 However there are times when the parties do not have the ability to
give a consent in deciding the arbitration agreement, rules and applicable laws. Therefore, a
default mechanism applies when the parties are not sure about a single arbitrator and cannot
agree on the arbitrator or if there are three arbitrators they can still not agree on the identity of
the chair person.20 As there is no requirements of legal qualification to sit perform as an

10 st
Andera M. Steingruber, Consent in international arbitration (1 edn, oxford university press 2012) 1.03.
11
Ibid (n 3).
12 rd
Legal-dictionary.thefreedictionary.com/consent<accessed 23 January 2016.
13
Section 7 of the English Arbitration Act.
14
Ibid (n 3).
15
Andrew Tweeddale and Karen Tweeddale ‘Arbitration of commercial Disputes international and English Law
and practice (oxford) 2007 48.
16
Sherina Petit, ‘The governing law of the arbitration agreement Q&A ‘2014<
http://www.nortonrosefulbright.com/knowledge/publications/115902/the-governing-law-of-the-arbitration-
the
agreement-qa>accessed 27 January 2016.
17
Ibid (n 3).
18
[1995] 514 U.S. 938.
19
Ibid (n 3).
20
Jean-Franccoois Poudret, Sebastine Besson, “comparative law of international arbitration” (sweet &
Maxwell) 2007 para 8-9.
arbitrator the parties therefore can choose any person of a legal background or someone who
has experience in the field of law.
Article 26 of the model law “permits award by consent of the parties, according to Article 16
if the parties conclude a settlement after the transmission of a file to the Arbitral Tribunal in
accordance with Article 13, the procedure of the settlement shall be recorded as an Award
which is by the consent of the party and the agreement of the tribunal. The award issued must
have the consent of award constituted buy the tribunal stating the dispute amongst the parties
and this dispute has been acknowledged for arbitration with an ongoing process.21
Consent can be compared to party autonomy in relation to international commercial
arbitration as Autonomy determines the parties’ freedom to go into a contract and adopt
arbitration as an alternative dispute resolution. However the freedom enjoyed by parties to
adopt the procedures applied for arbitration, the seat of arbitration and appointment and
questioning the arbitrator. 22There are certain limitation and restrain on party autonomy
which shall which has bought many arguments as to whether limitations on parties should
exist in regards to international commercial arbitration.23
3. The Arbitration Agreements and the parties.
Agreement under international commercial arbitration is an agreement made between two or
more parties where the parties harmonize to settle disputes arising out of commercial nature
having an international element for arbitration.24Section 6 (1) of the arbitration act 1996
defines arbitration agreement as “agreement to submit to arbitration present or future dispute
whether contractual or not”.25 Before there is a valid arbitration there must first be a valid
agreement to arbitrate as agreement of the parties and submission of any dispute is the main
fact in international arbitration.26 It has variety of facts as basic procedure of arbitration
proceeding is agreement and parties have the freedom to resolve dispute through this process
which is a binding promise made by two or more parties to a contract for settling a dispute
rather than taking the litigation process.27 The arbitration agreement must be in written form
and is not a necessity to enclose the dispute only to matters of contractual nature.28 There are
two kinds of arbitration agreement-submission agreement and arbitration clause where the
parties have no provision for setting the dispute in the main contract they can use the
submission agreement as parties, the agreement that is made has already arisen between the
parties therefore, the tribunal in this case is competent to judge its own competence and when
parties make commercial contract and the subject matter is future dispute which is generally

21 ND
Michael W. Buhler and Thomas H Webster, ‘Handbook of ICC Arbitration (2 end 2008) 379
22
http://www.arbitration-
icca.org/media/4/48108242525153/media012223895489410limits_to_party_autonomy_in_international_com
th
mercial_arbitration.pdf.<accessed 28 Jan 2016
23
Ibid
24
Ibid (n 15) 97.
25
Arbitration act 1996.
26
Ibid (n 1) 12.
27
Sunday A Fagbemi, ‘The doctrine of party autonomy in international commercial arbitration: myth or reality’
(2015) 6:1 266.
28
Ibid (n 15) 582.
short and to the point is called arbitration clause.29 Therefore, when an arbitration agreement
is drafted by the parties they benefit to construct a resolution process of their own alternative
which aims in obtaining its influence of party autonomy as the basic rule of arbitration is both
the parties can enter into an agreement freely by formulating and drafting their own terms and
conditions procuring theirs needs also if they want to waiver or null the agreement process
both the parties consent are the basic requirements.30
4. Validation of Contract in Arbitration Agreement
To get the acknowledgement of being a valid arbitration agreement is determined by the main
contract or the proper law of individual countries with the consent and intentions of the
parties and not focusing to any specific Nations law.31 It needs to have certain evidences to
prove the existence of the parties consent for arbitration laws that is in a (1) written form and
the agreement is signed.32 Article II (i) (ii) and (iii) of the New York convention in particular
says that the agreement must be in writing to satisfy the requirement for a written
agreement.33 as most of the laws in arbitration process the agreements has to be formally
written as mentioned in the terms of the agreement the legal enforcement procedure made by
an individual or entity to carry out its legal rights to a national court in regards to settlement
of a dispute and to get a resolution from the private resolution arbitration mechanism.34 The
word writing has no assured definition yet The New York Convention provides in article 2
has defined it in its own way.35 Also the UNCITRAL Model Law in Article 7(2) has stated
that agreement must be in writing.36(2) The agreement must have a defined legal relationship
that commences out of a contractual relationship between the parties not necessarily be a
contract meaning there must be a (real or implied ) contractual relationship and when such
dispute are presented to arbitration it may be governed by the principle of ‘delictual or
tortious liability rather than the law of contract’.37 (3) Matters regarding Arbitrability:
generally the meaning of arbitrability is that it determines how and what kind of dispute can
be resolved by arbitration and which kind of disputes are resolved by the courts.38 The
arbitrable proceeding may be different in every country like the same law may not be
applicable in England and Libya regarding matrimonial proceeding.39 There are different
laws applicable to Arbitrability and its recognised in both nationally and internationally. 4)
Doctrine of separability: This concept of separability is stated in different ways in according
to the countries law .for instance it is called ‘severability’ in the United States and ‘autonomy
in Germany and France.40 Despite its various names it remains secondary as is independent
from the fate of transaction, termination and cancellation or invalidity as the arbitration

29
Ar. Gör. Şeyda Dursun, ‘A Critical Examination of the Role of Party Autonomy in International Commercial
Arbitration and an Assessment of its Role and Extent’ 164.
<http://www.yalova.edu.tr/Files/UserFiles/83/8_Dursun.pdf > accessed 28 January 2015
30
http://www.arbitration.icca.org/media/0/12223895489.
31
Onyema Emilia, ‘International Commercial Arbitration and the Arbitrator’s Contract’ (Routledge 2010) 17.
32
Ibid (n 31).
33
See article 2 (i) (ii) and (iii) of The New York convention.
34
Ibid (n 31) 17.
35
Ibid (n 15) para 4.06.
36
Article 7 (2) of UNCITRAL Model Law.
37
Ibid (n 15) para 2.22.
38
Ibid (n 15) para 2.111.
39
Ibid (n 15) para 4.23.
40
Ibid (n 15) para 5.56.
clause and the other parts of the contract unnoticed agreement that is why any element
considered to be invalid and unenforceable is not obligatory that it effects the arbitration
agreement as arbitration agreement are said to be independent and separate from the
fundamental relations.41 The separablity of the arbitration clause gives access to the other
governing laws of the main contract.42 Separability also ‘protects the integrity of the
agreement to arbitrate and plays an important role in ensuring that the parties’ intention to
submit disputes is not easily defeated and the jurisdiction of the arbitration tribunal’.43 The
award given regarding jurisdiction (competence) of the Arbitral Tribunal is made by the
Tribunal. However, the doctrine is referred to as the ‘Competence de Competence’ doctrine.44
This doctrine has been accepted in various decisions in the United Kingdom like in the case
of Harbour Assurance (UK) ltd v Kansa general international insurance,45 where it states
that the underlying contract can be arbitrated in regards to agreement as separability is
approved in the international arbitration practise.46
5. The Arbitration Agreement Governed by Law
International commercial arbitration has various laws that apply in arbitration such as “(1)
Law of the underlying contract, (2) the law of the seat of arbitration, (3) the law of arbitration
agreement.” Arbitration agreement regulates between other things like validity and scope.
Arbitration clause should determine the seat of the law that govern arbitration agreement
perfectly, but parties often fail to specify the law in practise that arises problem specially
when laws that govern the underlying contract is different from law that apply in law of the
seat of arbitration and disputes arising from validity of arbitration agreement.47 In most cases
it is believed that autonomous agreement is finalized after that main contract of submission
agreement, it is found in distinct document having its own existence with a well-defined
object and being governed by different laws.48 Courts in different jurisdiction has adopted
various approaches to specify their governing laws like in the case of Firstlink Investments
Corp Ltd v GT Payment Pte Ltd and others,49 the high court of Singapore held that, the law
of seat shall apply as an governing law of an arbitration agreement in the absence of a valid
contract for agreement50 submission agreement despite stating the main contract it relates to
several contracts, as dispute between the parties that is to be resolved by arbitration is the
main concern as submission agreement is fully independent to that of substantive commercial
obligation under the main contract in terms of performance.51

41
Dr Peter Binder, ‘International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions’
(3rd edn, Sweet & Maxwell 2010) 44-45
42
Ibid (n 1) 167.
43
Lew, Mistelius and Kroll ‘Comparative International Commercial Arbitration’ (Kluwer Law International 2003)
102.
44
Art 16 of the UNCITRAL Model and Art 6(4) of ICC Rules confers jurisdiction on tribunal to determine the
validity of its competence to assume jurisdiction on a matter.
45
[1992] 1 Lloyd’s Rep 81.
46
Ibid (n 15)4.57.
47
https://www.blplaw.com/expert-legal-insights/articles/law-governs-arbitration-clause-decide/
48
Ibid (n 41) 101.
49
[2014] SGHCR.
50
Ibid (n 47).
51
Ibid (n 43).
The arbitration clause however seeks out expressly an agreement to arbitrate. Autonomy of
arbitration clause is an issue that is foremost in this instance like the reciprocation of the
arbitrator in issues of jurisdiction, main contract and the status, what laws govern the
arbitration agreement and does the law govern the contract? The same laws that govern the
substantive disputes has been chosen by the parties.52 However parties are suggested to make
a clear and well drafted submission agreement with the laws that apply to the agreement and
if the parties do not make a decision as to the applicable law and the law of the seat of
arbitration the law that applies to the contract wholly shall be the applicable law.53
As each country want to govern its own boundary for arbitration process54 there has been
nine independent outlooks that determines the method of implementation for arbitration and
the applicable laws.55 Elements like submission and validity to various laws, the applicability
extend and conventions relating to the New York Convention can entice complications on
either sides of national law and international conventions.56 There are times when the
method for traditional conflict of law is adopted and the applicable laws sometimes are said
to determine with consent the basic component as party autonomy the only difference is when
the parties have not decided as to which law shall be applicable to the arbitration agreement.
The elements involved in this case shall be indulged with the place, governing laws of the
contract, enforcement and the amalgamation of all the factors for arbitration agreement.57
However, in a leading case of C v D58 It was held that (lex-arbitri) plays a dominant role
where it comes to place of arbitration.
6. The principle of Party Autonomy in International Commercial Arbitration
Party autonomy is based on freedom of contract, it was introduced by a philosophy from the
doctrine of laissez-faire, ‘invoking unrestricted freedom in commerce and providing that the
law should have little or less interference with the affairs of parties’ especially in contractual
matters.59 It was firstly evolved by the academic writers before being adopted by the national
courts 60 and has also been defined as "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 arbitral institutions and
organisations. The legislative history of the Model Law shows that the principle was adopted
without opposition..."61 Although they have differences, common law, civil law and socialist
countries are equally influenced by the development m it is said that the best explanation for
the principle of party autonomy is speculated by the doctrine of laissez faire by justification

52
Ibid (n 1) 166.
53
Ibid.
54
Ibid para 3.40.
55
Blessing, ‘The law applicable to the arbitration clause and Arbitrability’, in van den berg (ed), ICCA congress
series no 9,169.
56
Ibid (n 43) 108.
57
Ibid (n 43) 124.
58
C v D [2007] EWCH 1541.
59 59
PS Atiyah, ‘An Introduction to the Law of Contract’ (3rd edn, Oxford University Press 1989) 7.
60 th
Nigel Blackaby and Constantine Partasides QC, ‘Redfren and Hunter on International (6 edn, Oxford
University Press 2015)187.
61
Alan Redfern and Martin Hunter, with Nigel Blackaby and Consantine Partasides, ‘Law and Practice of
International Commercial Arbitration’ (4th Edition, 2004) 315.
of contractual theory.62 This theory analyses the nature of arbitration from a contractual
perspective as arbitration is based on agreement of the parties and can be concluded by
saying that it’s the parties own choice in functioning the contract and can also be assigned
as the directing mind and will in a commercial contract. parties have right in deciding their
own issues regarding the arbitrators that shall settle an issue, drafting and formatting the
length of procedure , the place of arbitration, the language of arbitration, applicable laws in
arbitration agreement and the main contract and procedure and due this reason the state
cannot infringe the given liberty to the parties.63 The international arbitral tribunal is
obligated to recognize the agreement of the parties in applying the chosen laws of the parties
by simply complying with the wishes of the parties.64 party autonomy in regards to contract
making by transnational corporation plays a profound role in the matter 65 In the case of
Bovis Lens Lease Pty Ltd v Jay-Teah Marine project Pte ltd.66 Was observed that party
autonomy is one of the most important principles in arbitration law by justice Prakash. It can
also be said that the most significant principle that is based on Model Law should be freedom
of the parties as the functioning of international commercial arbitration and the parties
expectation will be simplified as it shall allow them to freely submit their arbitration
processes according to their needs.67
7. Recognition by International Conventions
The basic of Party autonomy is recognized by almost all the law, rules, and conventions in
international arbitration.68 It has been stated that parties are at liberty to make choices for
themselves regarding the applicable law for their contract in The New York Convention,
Model law (and UNCITRAL Rules), ICC (International Chambers of Commerce) Rules and
also the ICSID (Rules of Procedure for Arbitration Proceedings, 2006) for example article 42
of the ICSID Convention provides “the tribunal shall decide a dispute in accordance with
such rules of law as may be agreed by the parties.”69 This is also shown in Article 35(1) of
the UNCITRAL Rules70 and article 21(1) of the ICC Rules71 where it states that party
autonomy play a huge role in international conventions regarding recognition.
8. Choice of law time and rules in party autonomy
Party autonomy was originated for the parties to have freedom in making choices on the
applicable laws at the time of making their contracts but it has now prolonged with the right
of the parties to decide the law at the time of the dispute as it is reasonable to permit the

62
Hong-Lin Yu, ‘How far can Party Autonomy be Stretched in Setting the Grounds for the Refusal of Arbitral
Awards’ (2011) 14(5) Int ALR 156.
63
Ibid (n 62) 56.
64
Ibid (n 60) 187.
65
Fluer Johns, ‘performing party autonomy’ [2008] Hein online vol 71 243.
66
[2005] SGHC 91 196.
67
Warren B. Chick, ‘Recent development in Singapore on international commercial
nd
arbitration’http://www.commonlii.org/sg/journals/SGYrBkIntLaw/2006/20.pdf<accessed 2 Feb 2016>.
68
Ibid (n 27) 228.
69
Ibid (n 1)188. Para 3.100.
70
The arbitral tribunal shall apply the rules of law designated by the parties as applicable to the substance of
the dispute.
71
The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of
the dispute.
parties to make their choices for the governing law at the time of making their contract.72 As
the fundamental rule of party autonomy is found nearly in all the modern arbitration regime
they also have the right to remove the tribunal in case of the arbitral tribunal having the
power to hear the witness or experts under the ICC Rule.73 parties are to make their own
rights and duties to support each other like referring to the method of law at the same time
when the contract is to be governed as law forms a basic factor for agreement between them
as parties are free to alter the terms of the contract by agreement similarly they are free to
change the applicable laws of the agreement for a dispute that is caused by the contract. 74
party autonomy also has the choice of arbitral situs that gives freedom to the parties to choose
the seat for arbitration for countries who gives the permission to regulate arbitration without
judicial intervention but parties rarely choose this process as they require to get a review
procedure as it implements the method of check and balance ‘this review process is a bulwark
against corruption, arbitrariness and bias’.75 Therefore the main aim of the choices made by
parties in international commercial arbitration is that the parties according to regulation must
make full use of the freedom given by incorporating the choice of law clauses in their
contract.76
9. Restriction on party autonomy
Party autonomy may be restricted by the mandatory laws that are seat to arbitration or
choices of procedural laws. Natural justice and public policy consideration in arbitration take
the form of mandatory law most of the time. UNCITRAL Model Law in International
Commercial Arbitration (“Model Law”) in its Art. 19 (1) sets forth the following provisions
on party autonomy as “Subject to the provisions of this Law, the parties are free to agree on
the procedure to be followed by the arbitral tribunal in conducting the proceedings”.77 As the
parties have the freedom to settle their matter on a document or by oral evidence, formally or
informally, conducting the arbitration process and it must be opposing and inquisitorially but
no case can be can be prevented by a party from being presented or in any way be restricted
from fair hearing. One of the things that the parties cannot agree to is a procedure that is
fundamentally offensive in the seat of arbitration to the notions of justice.78Therefore it is
clear that the parties have certain restrictions and do not have an absolute autonomy and these
restrictions are made in certain level and extend depending on the factors like from the time
of an arbitration agreement until receipt of an arbitral award, as the extend could considerably
differ and more suitability of various restrictions can depend when the parties reach on a
particular question or agreement.79 it was recognised by the secretariat of UNCITRAL about
the rigidity of the report before the implementation of UNCITRAL Model Law and was
stated that “it will be one of the more delicate and complex problem of the preparation of the
Model Law to strike a balance between the interest of the parties to freely determine the

72
Ibid (n 60).
73
Ibid (n 15)260.
74
Ibid (n 1)188.
75
Ibid (n 1)256-257.
76
Ibid (n 60)190.
77
ARTICLLE 19(1) OF UNCITRAL.
78
Ibid (n 15) 260.
79
http://www.sk.ua/publications/party-autonomy-vs-mandatory-rules-in-international-arbitration<accessed
th
5 Feb 2015>.
procedure to be followed and the interest of the legal system expressed to given recognition
and effect thereto’.80
10. Limitation of party autonomy under international commercial arbitration
The principal of party autonomy is observed by various international conventions however,
these conventions subjects to some restrictions and do not confirm party autonomy to be
divine or unlimited as limitations are made only through some requirements that can be
categorised.81 Prima facea, the approach of party autonomy processes on the parties having
full charge and deciding the requirement for governance in the method of arbitration the
tribunal being in same pace as them. On the other hand Article 18 and 19 of the UNCITRAL
Model Law focuses on the parties ‘freedom to the provision of this law’ which presents a
comprehensive principle for the limitation to party autonomy.82 In context 83to the mandatory
provisions.84 For instance Art 27 of Model law confines that the parties or the tribunal can
appeal for assistance from the court for proceeding the evidence and this provision ensures
that the parties are not intercepted in presenting their case when the tribunal is not able to
obtain evidence in some cases.85 This mandatory provisions to some extent restrict the parties
in conducting the proceeding in times of giving evidences however the US delegate accepts
that basic of party autonomy is a ‘continuing right and not to be exercised only during the
period preceding the arbitration’. Hence, as Model law has a method of procedure for the
parties stating that they should be granted absolute freedom for choice without restricting the
freedom by time limit as it shall serve them well.86 Parties at most times in their arbitral
proceeding use the pre-drafted rules of arbitration such as UNCITRAL Arbitration Rules,
The LCIA Rules or the ICC rules.87
The main constrain or limitations for party autonomy are
a) Public policy: one of the most common ways of limitation on party autonomy where
restrictions on party autonomy is public policy. Article 36 (1) of the UNCITRAL
Model Law states the grounds for refusal for enforcement and recognition of an
arbitral award.88 As each state can carry out the process of arbitration according to
their countries law as each state has the right to implement full and permanent
sovereignty. Refusal of recognition and enforcement is also stated in Article V of the
New York convention quoting that the refusal can be done when ‘the subject matter of
the difference is not capable of settlement by arbitration under the law of that country’
or when the award is contrary to the public policy of that country.89 As public policy
can be determined by the socio, economic and cultural status of each country so it is
different in every other country. The arbitrators have internationally said that the

80
Ibid (n 15)60.
81
Ibid (n 1) 366.
82
Ibid (n 41).
83
A/ CN.9/SR.316, Para 51.
84
The mandatory provisions include UNCITRAL Model Article 23(1), Art 24(2) and (3), Art27, Art 30(2),Art
31(1),(3) and (4), Art 32, Art 33(1) (2) (4) and (5).
85
Ibid (n 41) 282.
86
Ibid (n41) 283.
87
Ibid (n 41) 285.
88
Article 36 (1).
89
Article V (2) (a) (b).
 award is likely to be enforced by countries who interpret public policy.90 The parties
on making any agreement should confer powers on the arbitral tribunal to carry out
any act that would be contrary to the public policy of the country where the arbitration
is taking place and it shall be unenforceable if it has exceeded the offending provision
and any act that cannot function according to the purports of the arbitral tribunal.91
b) Parties’ failure to agree: As the basic of part autonomy is consent the parties have
the freedom to direct the ways of proceeding that are to be conducted even when they
are not able to reach an agreement. However, there are some rules that can be chosen
and are specified as default provisions or Lex Arbitri that is said to be in motion or it
shall be determined by the arbitral tribunal.92
c) The Right to present a case: parties have the fundamental right in arbitration to
present their case with a reasonable opportunity. This focuses on the natural justice
principles and is based on the Latin maxim Audi alteram partem which means hear
the other side in regards to the procedural rights and duties including the right to get
notifications on certain proceedings for the commencement of arbitration, hearing,
and right to answer for the allegations made by the opposite party. While one of the
party provides the information to the tribunal it must also communicate with the other
party so that there is nothing hidden between them.93 It was a after the revision of the
1976 UNCITRAL Arbitration Rules which bought up the matter of controversy
during the revision and having a vital role there can be times when it is inappropriate
and leads to procedural inequalities and sometimes the parties are given short time to
communicate their submission which brings up a problem as the other party can see
the submission that are filed. However in such situations the tribunal has a right to us
his discretionary power if permitted by the law.94
d) Right to equal treatment: if party autonomy is said to be one of the basic principle
of law in regards to international arbitration the other significant principle is equality
of treatment. It is recognised in both the New York Convention and the Model Law
stating ‘the parties shall be treated with equality and each party shall be given a full
opportunity of presenting his case.’95 This concept of equality of treatment is the basic
of all civilised system from of civil justice also the revised rule in article 17(1)96 of
the UNCITRAL Rule also states that the parties must be treated equally similarly
there are other rules if arbitration that determines the concept.97 Parties being treated
equally is a requirement that functions as limitations for party autonomy. The
provision in a submission agreement where only one party is heard by the arbitral

90
Section 103 (3) of English Arbitration Act.
91
Ibid (n 1) Para 6.16.
92
Christopher Kee, J. Romesh Weeramantry, and Simon Greenberg, ‘International Commercial Arbitration: An
Asia-Pacific Perspective’ Cambridge University Press, 2011, 306.
93
Article 24(3) of UNCITRAL Model Law and Article 15 of UNCITRAL Arbitral Rules.
94
Ibid. art 24and 15.
95
Article 18 of Model law
96
Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate, provided that the parties are treated with equality and that an appropriate stage of the
proceedings each party is given a reasonable opportunity of presenting its case. The arbitral tribunal, in
exercising its discretion, shall conduct the proceedings so as to avoid unnecessary delay and expense and to
provide a fair and efficient process for resolving the parties’ dispute
97
See WIPO Arbitration Rules, Art 38(a); the corresponding provisions of the ICC Rules , Art 15 (2), ICSID
Rules,42 and the LCIA Rules Art 14.1 (i) do not expressly mention ‘equality but the phrase ‘fairly and
 tribunal can be considered invalid by the enforcement court even when both the
parties agree to the provision.98
e) Arbitration Rules: The parties can choose another form for functioning the
arbitration rules but this rules usually contain mandatory provisions in regards to the
method of proceeding the UNCITRAL Rules in Article 17(1) says that both the
parties must be treated equally and they must be given reasonable opportunity to
present their case.99 And under Article 17(3) talks about the right of the parties’ to be
heard if either of the parties request at suitable time of the proceeding. Furthermore, in
Article 23 and 21 says that there must be a continuing exchange of submission in
writing (a ‘statement of claim ands a statement of defence ‘) and all the relevant
documents and statements should be submitted by the parties.100 The tribunal appoints
an expert as it gives the parties the opportunity to question that expert at a hearing and
the parties must be given an opportunity to question that expert at a hearing and the
parties must be given an opportunity to present their own expert witness on the point
at issue.101 Also in Article 30(2) (settlement) with an ‘ordinary’ award, as the
principle of equality is stated.102 There are various other rules that limit the party
autonomy in certain provisions.103 This provisions of the arbitration rules limits party
autonomy in certain manner.
f) Institutional requirement: party autonomy can sometimes be constrained as it is not
an obstacle to autonomy. However, in some institutional rules, the parties cannot
exclude the supervision which has the elements of that autonomy, as the parties
themselves have chosen the institutional rules that would be applied in the first
instance.104
g) Third party: parties may agree to whatever arbitration agreement but it cannot
legally bind a third party except there is a special provision in the applicable law that
authorise them to do so. For instance the rules of procedure may warrant the arbitral
tribunal to ask the third party to enforce a certain act but it cannot direct any person to
pay a sum of money or enforce any act to who is not a party to the arbitration
agreement.105 The involvement of third parties in arbitration proceedings can only be
determined by assistance of the national courts of competent jurisdiction and not by
the evidences or documents produced.106
h) Force Majeure Clause: The recognition of the doctrine of force majeure is
implemented by several jurisdiction in the commercial world.107 This brings
obstruction to the party autonomy and brings itself as a term of contract that usually
have various legal effects depending on the legal frame work. This clause is basically
made to justify the liability of a party’s non-performance of its obligations, where the
implementation are interrupted by proceeding which are ultra vires of the parties,
98
Ibid (n 60) para 6.12.
99
Ibid (n 60)para 6.16
100
Article 21 and 23 of UNCITRAL Rule.
101
Article 29(5) of UNCITRAL Rule.
102
Article 32(2) of UNCITRAL Rule.
103
See Article31 (1), article 32 (2) and Article 33 (1), (2), (3) (4) and (5) of the UNCITRAL RULES.
104
Ibid (n 92).
105
Ibid (n 1).
106
Ibid (n 1).
107
File://fs-home –l/home-011/sop602/window_data/downloads/cepmlp-
th
car13_39_912775406.pdf.<accessed 9 Feb 2016>.
 uncertain and cannot be practically affected. 108 the question about the interpretation
of the ultra vires of the parties shall be determine by the nations who influence and
understand the acceptance of liability like in the case of a producer not receiving raw
materials from its suppliers obstructs him to fulfil his obligations as a result of the
default on the part of the supplier in supplying its materials, this approach in certain
jurisdiction consider strict liability for performing the obligations that are in the
contract.109 it also includes the events like destruction of the subject matter, death of a
person, unavailability of the subject matter and performance impossibilities etc.110 it
also has different perspective in the civil and common law in regards to liability for
non-performance the English law regarding the capability of benefits for the clear
flow of business by making sure an equitable justice is given on the other hand the
civil law system also in certain circumstances privilege the subjective elements of
particular cases so that there is an equitable remedy available.111 Force majeure occurs
when there is a recognition by law that the performance of obligation to the contract
was defaulted not because of the parties but the situation and the circumstance. ‘I
promise to do this but I cannot due to some irresistible unforeseeable and
uncontrollable event’.112
i) External limits to party autonomy: The role of domestic court
As the parties in arbitration can agree on everything about the arbitration agreement
and the contracting parties are satisfied enough that the tribunal is given effect to the
will of the parties as involved in the contract and the result is observed by the party
who has lost the proceeding or if it has been enforced by the court but it can also fail
if the arbitral award is invalid or becomes unenforceable as the subject matter in the
terms of the contract and there shall be no interference of any court unless there is a
law that provides its governance.113 Sometimes the decision taken by the courts for
the arbitration agreement are not what the parties have agreed to like in the landmark
case of Dermajaya properties Sdn Bhd v. Premium properties Sdn Bhd.114 Where
the parties had chosen the UNCITRAL Arbitration rules to govern their arbitration
proceeding but the court did not apply the rule as it did not well match the model law
rule and it was fully omitted in accordance to the model law. In order to match with
the proceeding and to protect Singapore’s reputation article 15 of the UNCITRAL
Arbitration Rules was taken into consideration for the Singapore international
arbitration act. 115 This provision provides arbitration rules that the parties are given
and those that are not mandatory to an extent as limitations can be included with the
terms of contract, limitation periods, condition precedent, Arbitral tribunal discretion,
entire agreement clause, no uniform legal framework, and contractual time bar
108
Guiditta Cordero Moss, ‘limits to party autonomy in international commercial arbitration’ Oslo law review
2014 http://www.jus.uio.no/ifp/english/research/projects/choice-of-law/publications/979-4604-1-
th
sm.pdf<accessed 10 Feb 2016>.
109
Ibid.
110
Ibid (n 107).
111
Ibid (n 108).
112
Ibid (n 107)
113
Loukas. Mistelis & Stavros L. Breakoulakis ‘Arbitrality: International & Comparative Perspectives’ (Kluwer
Law International) 2009 246
114
[2002] 2SLR 164.
115
http://www.internationallawoffice.com/Newsletters/Arbitration-ADR/Singapore/Baker-McKenzieWong-
th
Leow/Parliament-Resolves-Uncertainties-over-Opting-Out<accessed 15 Feb 2016>.
 provisions that are in the contract and if the contract has time bar as a provision then
there shall be a strict construction of the clause and will be applied only where it
states that the problem claimed is clear.116

11. Conclusion
International Commercial arbitration is an amalgamation of private Agreement and
proceedings where the method of arbitration is decided by the parties as they play a
significant role. The parties have an effective defence in regards to arbitration and various
legal regimes support the principle of party autonomy but as it is finalised with a result that
has a binding legal effect under various courts of different countries therefore, it ends with an
award that is recognized worldwide. As arbitration provides the parties right to autonomy it
also has some limits that binds the parties in many aspect like the courts having judicial
control when party autonomy has an overruling award.117 Therefore the relation between the
national law and the international treaties is an effective source in international commercial
arbitration. Even though arbitration process nowadays have become more expensive,
complicated, equitable and institutionalised the main purpose of it is still the same resolving
disputes of the parties’ which they cannot do it by themselves and by choosing an expertise as
a judge also making their dispute confidential and accepting the decision that is binding
which is made by the arbitral tribunal or arbitrators for any dispute.

116
Ibid (n 15) 8.15.8.16.
117
Ibid (n 108).
Bibliography:
Books
1. Atiyah PS, ‘An Introduction to the Law of Contract’ (3rd edn, Oxford
University Press 1989 Steingruber Andera M., Consent in international
arbitration (1st edn, oxford university press 2012)
2. Blackaby N and Partasides C QC, ‘Redfren and Hunter on International (6th
edn, Oxford University Press 2015).
3. Buhler and Webster, ‘Handbook of ICC Arbitration (2ND edn 2008).
4. Redfren A and Hunter M,’ Redfern and Hunter on International Commercial
Arbitration’ (5th edn , Oxford University Press 2009)
5. Christopher Kee, J. Romesh Weeramantry, and Simon Greenberg,
‘International Commercial Arbitration: An Asia-Pacific Perspective’
(Cambridge University Press, 2011).
6. Dr Binder P, ‘International Commercial Arbitration and Conciliation in
UNCITRAL Model Law Jurisdictions’ (3rd edn, Sweet & Maxwell 2010).
7. Emilia Onyema, ‘International Commercial Arbitration and the Arbitrator’s
Contract’ (Routledge 2010.
8. Jean-Franccoois Poudret,Sebastine Besson, “comparative law of international
arbitration”(sweet & Maxwell) 2007.
9. Lew, Mistelius and Kroll ‘Comparative International Commercial
Arbitration’ (Kluwer Law International 2003).
10. Loukas. Mistelis & Stavros L. Breakoulakis ‘Arbirality: International &
Comparitive Perspectives’ (Kluwer Law International) 2009.
11. Redfern and Hunter, with Nigel Blackaby and Consantine Partasides, ‘Law
and Practice of International Commercial Arbitration’ (4th Edition, 2004).
12. Tweeddale A and Tweeddale K, ‘Arbitration of commercial dispute
international and English law and practise’ (oxford university press 2007).

Journals and articles

 1. Blessing, ‘The law applicable to the arbitration clause and Arbitrability’, in van
den berg (ed), ICCA congress series no 9.
2. Fluer Johns, ‘performing party autonomy’ [2008] Heinonline vol 71 .
3. Guiditta Cordero Moss, ‘limits to party autonomy in international commercial
arbitration’ Oslo law review 2014.
4. Hong-Lin Yu, ‘How far can Party Autonomy be Stretched in Setting the Grounds
for the Refusal of Arbitral Awards’ (2011).
5. Johanna Maxson, ‘Binding Non-signatories to Arbitration agreement’ (2009).
6. Sunday A Fagbemi, ‘The doctrine of party autonomy in international commercial
arbitration: myth or reality’ (2015) 6:1.

Legislation

English Arbitration Act 1996.

International Chamber of Commerce Rules of Arbitration.
Regulation A/ CN.9/SR.
The New York Convention 1958
United Nations Commission on International Trade Law Model law
United Nations Commission on International Trade Law Arbitration Rules (as
revised in 2010).

CASES
Bovis Lens Lease Pty Ltd v Jay-Teah Marine project Pte ltd [2005] SGHC 91 196.
C v D [2007] EWCH 1541.
Dermajaya properties Sdn Bhd v. Premium properties Sdn Bhd [2002] 2SLR 164.
Firstlink Investments Corp Ltd v GT Payment Pte Ltd and others, [2014] SGHCR.
Website and others
Ar. Gör. Şeyda Dursun, ‘A Critical Examination of the Role of Party Autonomy in
International Commercial Arbitration and an Assessment of its Role and Extent’ 164.
<http://www.yalova.edu.tr/Files/UserFiles/83/8_Dursun.pdf > accessed 28 January 2015
File://fs-home –l/home-011/sop602/window_data/downloads/cepmlp-
car13_39_912775406.pdf.<accessed 9th feb 2016>.

http://www.arbitration.icca.org/media/0/12223895489.
https://www.blplaw.com/expert-legal-insights/articles/law-governs-arbitration-clause-decide/
http://www.internationallawoffice.com/Newsletters/Arbitration-ADR/Singapore/Baker-
McKenzieWong-Leow/Parliament-Resolves-Uncertainties-over-Opting-Out<accessed 15th
feb 2016>.
http://www.nortonrosefulbright.com/knowledge/publications/115902/the-governing-law-of-
the-arbitration-agreement-qa>accessed 27the January 2016.

Legal-dictionary.thefreedictionary.com/consent<accessed 23rd January 2016.

Sherina Petit, ‘The governing law of the arbitration agreement Q&A ‘2014<

Warren B. Chick, ‘Recent development in Singapore on international commercial

arbitration’http://www.commonlii.org/sg/journals/SGYrBkIntLaw/2006/20.pdf<accessed 2nd
feb 2016>.
http://www.sk.ua/publications/party-autonomy-vs-mandatory-rules-in-international-
arbitration<accessed 5th feb 2015>.