As treat. These proposals of ICC were

As
the domestic level, parties seeking a binding approach to dispute resolution
through third party intervention may choose between national public courts and
private arbitration. Internationally public court deals with international
commercial disputes involving the private sector. Therefor, the choice of
international private parties is appealed to between national courts
(litigation) and resort to international private dispute settlement, ‘international
commercial arbitration’ or so called alternative disputes resolution (ADR)
technologies such as mediation and conciliation. Commercial arbitration is
hailed as the most effective form of dispute resolution for participants in
international trade.

            International commercial
arbitration is an alternative method of resolving disputes arising out of
commercial transactions between private parties across national borders that
allows the parties to avoid litigation in national courts.1

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            With the growth of international
trade and commerce, there was an increase in adjudicated through arbitration.
Arbitration is the favored method for different countries do business often
neither party will be willing to submit disputes that may arise between them to
the courts of the other party’s country. Each party will view the other party’s
legal system with distrust perceiving that they do not understand the other
party’s legal system and feeling if they are forced to litigate in the foreign country,
they will be hampered by language and cultural problems, and systems and
procedures that they do not know anything about.

            Related to recognition and
enforcement of an arbitral award made in one country by the courts of other
countries is one of the problems faced in arbitrations. In various
international convention, this difficulty was sought out to be removed. Geneva
protocol on arbitral clauses in 19232 is the first international
convention. The 1923 protocol sought to make arbitration agreement and
arbitration clauses in particular enforceable internationally. The 1923
protocol was followed by the Geneva convention on the execution of foreign
arbitral awards, 1927 and it known as the “Geneva Convention of 1927”.3

            To govern international commercial
arbitration, in 1953 the international chamber of commerce promoted a new
treat. These proposals of ICC were taken by the united nations economic social
council. This was a reason to the adoption of the convention on the recognition
and enforcement of foreign arbitral awards at New York convention.4 This New York convention is a
development on the Geneva convention on 1927. It provides more simple and
effective method of recognition and enforcement of foreign arbitral awards. It
provides much wider effect to the validity of arbitration agreement. The New
York convention is concerned with two matters.

1.
The recognition of and giving effect to arbitration agreement and

2.
the recognition of and giving effect to arbitration agreements and the
recognition, and enforcements of international arbitral awards.5 

              International Commercial
Arbitration is a resolving dispute arising international commercial agreements.
On 21st June 1985, united nations commission on international trade
law has framed a model law on international commercial arbitration. Also, this
model law is not binding and individual states may adopt the model law by
incorporating into their domestic law. This model law was amended in 2006. on
the other hand, these UNCITRAL arbitration rules are selected by the parties
either as part of their contract or after a dispute between themselves.6

              According to the international
commercial arbitration parties are free to determine the governing law for the
substance of the dispute. The arbitral tribunal shall apply the rules of law it
considers appropriate in view of the surrounding circumstances, if the
governing law is not specified, arbitration provides the parties to a contract
to agree that if a dispute comes a neutral and respected third party or parties
will appointed to solve their dispute in accordance with the procedures.

              The choice of where an
arbitration is, venue has important implications and should not be made
lightly. It impacts the role of local courts in relation to the arbitration
award and its conduct. This choice of venue affected to many issues including
cost and convenience. As an example, the venue is always the location where the
hearings are held. Therefore, it is important to ensure parties and their
witnesses have easy physical and legal access to the area.

               Before the arbitration process
begins, the local court of the selected court will often call for substantial
assistance from the parties. While most jurisdictions follow, the decisive
panel of judges has the power to do so independently.

         The fundamental principle in
international commercial arbitration is the independence of the party or the
party autonomy.

          It is described by the authors of
Redfern and Hanter in the following terms.

“…..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 institutions and organizations….”7

           Basically, the principle of party
autonomy is a flexible theory. This principle started to develop in the 19th
century. Mainly this party autonomy is based on the choice of law in a contract
and also this principle has broader meaning in international commercial
arbitration.

            In settling international
commercial arbitration, parties to the arbitration agreement not only choose
the rules, but are free to hold the arbitration process. The arbitration
agreement is the primary resource of the dispute settlement and the strongest
testimony to party autonomy.

            One objective of the UNICITRAL
Model Law is by limiting the role of an international court to the relaxation
of international commercial arbitration and the ‘part autonomy’ is it up to the
party to decide what constitutes their disagreements.

            When we talk about the party autonomy under
the New York convention, the New York convention is the united nations
convention on the recognition and enforcement of foreign arbitral awards. It
identifies the parties to the agreement have agreed to submit all or any of differences
in the present or future.8

             According to the above statement “the
freedom of parties to consensually execute arbitration agreement is known as
the principle of party autonomy. The principle provides a right for the parties
to international commercial arbitration to choose applicable substantive law
and these laws when chosen shall govern the contractual relationship of the
parties. However, the pertinent questions have always been: Do parties actually
have absolute freedom to determine the arbitration process? To what extent has
this been achieved in the resolution of disputes having international concerns?
And lastly, is party autonomy a myth or reality?…” of course, an arrangement
of parties to the arbitration agreement is the basis of any arbitration
process, and degree of certainty. However, their independence or autonomy is
limited to several limits. For example, any arbitration process has its own
basic principles that can not be ignored or violated by the parties.

                A simple agreement has an
arbitration agreement for elementary shares. Therefor, any factor entailing a
normal contract will invalidate the arbitration agreement and will do so
inevitably. For example, if the arbitration procedure is valid, the parties to
the arbitration agreement must have the capacity to make an agreement in the
arbitration procedure, and the applicable dispute or contract, whether the agreement
will be terminated or not will be effective failure.

                Another limitation for this is
issues related to third parties. Indeed, it is only that the arbitration
agreement is bound. Third parties can not agree with anything that can be
influenced by the parties. Third parties may be appointed to power as witnesses
for election as witnesses.

                Similarly, it is also necessary
for the parties to the arbitration to choose the law applicable to the
substance of the transaction in the execution of the contract and the
arbitrator is obliged to apply the law of choice of law is not real, the
arbitrator may ignore that responsibility. These are usually issues that arise
during and both parties are free to agree on the law applicable to the
arbitration and arbitration agreement.9

                 International Commercial
Arbitration recognizes that the court may not interfere in arbitration
proceedings. This is the foundation of this process. It is noteworthy that, in
the following circumstances, the court will intervene to assists the parties in
conduct the arbitration proceedings. First, if a party makes a request after
the first statement of the substance of the dispute has been filed, the court
filing the matter before the parties to arbitration agreement unless it is
found that the agreement is invalid or unenforceable. Second, all parties must
agree to appoint the arbitrators, but in case of differences, the arbitration
institution or the court may appoint arbitrators at the request of the parties,
order interim measures, subject to the arbitration agreement to determine that
the object of the dispute is a perishable article, preferably to convert it
into currency.10

              The application of the principle
of party autonomy and the determination of the parties ‘freedom to agree on
arbitral proceedings’ are a complex issue. When we consider international
commercial arbitration as drama, the principle of party autonomy is at the
center of the arbitration process. In the case of party autonomy, the party may
choose the applicable law and conduct arbitration proceedings such as
determining the composition of the arbitral tribunal, the language of the
arbitration, the place of the arbitration, the law applicable to the arbitration
proceedings. In other words, the principle of party autonomy allows the parties
to determine all the basic elements of arbitration.

 

 

 

 

 

 

§  CONCLUTION

               Therefore, the principle of
party autonomy is an arbitration that is different from other dispute
resolution mechanisms. It plays the most important role in the entire
arbitration process. As the degree of party autonomy is a principle based on
freedom contract. The parties can exercise such free international commercial
arbitration in every stage of international commercial arbitration. However,
this principle is not unlimited, as discussed in this answer it has been
limited in some cases. For example, in order to deter commercial arbitration
over party conduct, it is in violation of public policy that courts have the
power to interfere with the procedures passed or the award awarded thereby. In
principle the court always intervenes to ensure that the arbitration agreement
is valid and in accordance with the law governing it, and that the agreement of
both parties does not violate public policy. Once again contravened the
principle of arbitration of natural justice and nature, and other factors have
evolved into checks and balance on the principle of a party autonomy, thereby
limiting their implementation of agreements that may affect the public
interest.

             This principle, widely accepted in
international commercial arbitration, is a key element in all arbitration
agreements and an effective tool to promote and protect the interests of commercial
arbitration parties. Although much has been said about retaining this principle
in commercial arbitration, it is pointed out that “party autonomy of
purpose” is not synonymous with “unlimited power” or
“complete autonomy”, as this will lead one to assert that it is a
principle of autonomy of parties No flexibility.

               For this reason, the term “party
autonomy” means that this is a basic principle of international commercial
arbitration and is of great practical significance. These restrictions are
exceptions to the autonomy of commercial arbitration parties. Therefore, the
principle of party autonomy cannot be ironically said. Unless the parties to
the arbitration comply with the basic validity of the arbitration agreement, as
emphasized in this article, it may be a myth rather than a reality to apply the
function of the principle of party autonomy.