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Commercial Arbitration$
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Commercial Arbitration

Hong-Lin Yu

Print publication date: 2011

Print ISBN-13: 9781845861070

Published to Edinburgh Scholarship Online: September 2015

DOI: 10.3366/edinburgh/9781845861070.001.0001

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Party Autonomy and its Restrictions

Party Autonomy and its Restrictions

Chapter:
(p.67) Chapter 5 Party Autonomy and its Restrictions
Source:
Commercial Arbitration
Author(s):

Hong-Lin Yu

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9781845861070.003.0005

This chapter discusses the principle of party autonomy in arbitration. The principle of party autonomy is manifested in the parties' freedom in designing the arbitration procedures to suit their needs. However, party autonomy is not unlimited. It can be restricted by mandatory rules and public policy, which are used to make sure that arbitration is carried out according to a minimum level of standard. This chapter begins with an overview of the theoretical basis underlying the principle of party autonomy. It then considers how the principle is adopted in practice, both internationally and nationally, with particular emphasis on the theory of the freedom of contract and its effect on the mechanism of international commercial arbitration, along with party autonomy in national laws. The next section analyses the exceptions to the principle of party autonomy, namely: mandatory rules and public policy. Finally, the chapter examines the principle of party autonomy as spelled out in the Arbitration (Scotland) Act 2010.

Keywords:   party autonomy, arbitration, mandatory rules, public policy, freedom of contract, international commercial arbitration, national laws, Arbitration (Scotland) Act 2010

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