Party Autonomy: The Choice of Place

Abstract

The concept of party autonomy in the choice of the arbitration situs has not always been either the rule or the practice. For example, Articles IX (Section ‘B’) and XXIX (Section ‘C’) of the first International Chamber of Commerce (‘ICC’) arbitration rules of 1922 provided that ‘The arbitration shall take place in the country and town determined by the Court of Arbitration, after examination of the request for arbitration and before the appointment of arbitrators’. It was thus the Court of Arbitration and not the parties that was to fix the place of arbitration, although in practice the Court did not intervene except in case of disagreement between parties. As arbitration developed, the ICC Rules were modified to take account of the international character of ICC arbitration. Thus, the 1955 Rules expressly authorized the parties to agree on the place of arbitration. Yet parties were relatively slow to seize the opportunity to select by themselves their arbitration situs. Most often, they preferred to leave the choice to the ICC Court. Thus, as late as 1975, of 119 arbitration sites decided upon in the cases before the ICC Court, only 55 of them (46%) were chosen by the parties. Since that time, the trend has been almost continuously upward, with the parties selecting 52% of the sites in 1980, 68% in 1985 and 86% in 1989. Concomitant with this increasing autonomy of the parties in their choice of their arbitration situs has been an increasing autonomy of the parties vis-a-vis the situs they have chosen or which has been fixed by the Court of Arbitration insofar as the substantive and procedural laws to be applied in and to the arbitration are concerned. To speak at this point only of the applicable procedural laws, from their inception and as confirmed in the …