Achieving the Dream: Autonomous Arbitration

Abstract

DO YOU dream? When do you dream? What do you dream about? Do you dream about international arbitration? Is there a dream for international arbitration? Is the concept of delocalised arbitration, or arbitration not controlled by national law, a dream or nightmare? Is autonomous arbitration a reality, or is ‘every arbitration necessarily … a national arbitration, that is to say, subject to a specific system of national law’?1 As long ago as the mid-1950s, when participating in the drafting of the New York Convention, Frederic Eisemann, then Secretary-General of the ICC International Court of Arbitration, lobbied for a denationalised, international arbitration award.2 It was then too early for international arbitration to be detached from national law. Nonetheless, in many ways the New York Convention laid the seeds for autonomous international arbitration. The ideal and expectation is for international arbitration to be established and conducted according to internationally accepted practices, free from the controls of parochial national laws, and without the interference or review of national courts. Arbitration agreements and awards should be recognised and given effect, with little or no complication or review, by national courts. By corollary, the nightmare scenario exists in situations where national laws control a narrow right of access and the subject matters capable of being resolved in international arbitration. These nightmare scenarios undermine the international arbitration process. There can be no justification for national courts to intercede in the arbitration process or second-guess the determinations and analyses of an international arbitration tribunal. Courts which do so for parochial local law reasons, or because the court thinks its procedures and analyses are preferable and more reliable than those that exist in arbitration, ignore the intention and expectation of the parties and the autonomy of international arbitration. Nightmare scenarios include anti-arbitration injunctions. These can be …