Comparing the Role of the Courts in English and German Arbitration Law: Should Party Autonomy or Certainty Be Preferred?

Abstract

At the forefront of these different approaches … lies an internal contradiction. Arbitration law must constantly grapple with this contradiction. It is within the discretion of the legislator to decide where to draw the line between party autonomy and legal certainty.” [Section C III, final paragraph]. This essay seeks to draw on the often complementary, but contrasting principles of party autonomy and legal certainty to distinguish the English and German legislators’ approach to the drafting of its national arbitration laws. Emphasis is on how they have differently defined the boundaries of the relationship between the courts and arbitral tribunals. Despite attempts by a 1985 United Nations Commission to harmonise the widely differing arbitration laws in Europe through the UNCITRAL Model Law, national systems have still sought to maintain certain features of their own arbitration rules in order to attract international parties to arbitrate in their countries. This author concludes that whilst English Arbitration Law provides more legal certainty for parties concluding arbitration agreements, an almost verbatim adoption of the UNCITRAL Model Law in Germany gives parties freedom to fill gaps in the substantive law by their own agreement.