Originally from European International Arbitration Review

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I.  Introduction  

In international arbitration, disputes are resolved based on the parties’ agreement. If the parties consent and agree to submit their matter to arbitration, the ordinary courts decline their jurisdiction in such disputes. In contrast, if the parties have not concluded an agreement to arbitrate, the national courts will have jurisdiction to try the matter. Therefore, an agreement between the parties provides a basis for the existence and formation of the arbitral tribunal. The parties are independent in setting out the procedure for such a tribunal, and they shall also determine the scope of the tribunal’s power and competence. The parties’ agreement will be binding on the arbitral tribunal. In case the tribunal exceeds its power, neither the award nor the jurisdiction of such a tribunal would be lawful. There will be no legal existence of such a tribunal or award. Thus, in international arbitration, parties’ autonomy is a touchstone in determining the arbitral procedure for the arbitration process. The national courts,2 domestic arbitration statutes, international instruments, including the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“New York Convention”) and UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Model Law”),3 and arbitral institutional rules endorse the principle of party autonomy in arbitration.4  

Nevertheless, the parties can also empower the arbitral tribunal to select the appropriate procedure based on the complexity of their case. Accordingly, the arbitral tribunal can select to conduct arbitration formally or informally, using an inquisitorial or adversarial procedure or the oral or documentary method of evidence, either with or without hearings. While the party’s autonomy in the arbitration context is not absolute, it may be subject to legal limitations. For instance, autonomy will be limited when the parties fail to agree on a procedure or when there is a need to satisfy the due process principles or principles of natural justice.5 Likewise, the parties agree on the procedural rules that conflict with mandatory provision of lex arbitri; in such a case, the mandatory provisions will prevail.6  

This article critically analyses international instruments and arbitral institution rules to identify the various steps involved in the arbitral process and map out the method for conducting an arbitral process, with a thematic analysis of common practices.