The Conflicts Between Party Autonomy and Public Policy in International Commercial Arbitration
|Keywords:||國際商務仲裁;當事人意思自治;公共秩序;仲裁契約;仲裁程序;仲裁條款;紐約公約;International Commercial Arbitration;Party Autonomy;Public Policy;Arbitration Agreement;Arbitral Proceedings;Arbitration Clause;New York Convention|
International Commercial Arbitration is one of the most popular dispute resolution mechanisms in recent years due to the flexible nature of arbitration procedures. What made room for the flexibility is the principle of party autonomy. Parties waive their rights to bring dispute to the court and carve out the jurisdiction of the court by agreeing to arbitrate via an arbitration agreement. Due to such principle, the requirements for arbitration, almost at all fronts, are determined by the will of parties. However, party autonomy has its limits and restrictions, subject to certain boundaries. Public policy, for example, is one of the kinds. Public policy generally refers to matters related to public interest, and such concept derives from states fully exercising their sovereignty. Due to the differences in social, economic, and cultural aspects, the context of “public policy” differs from state to state. An arbitration agreement that violates public policy might lead to the invalidity of the agreement or cause the arbitral award to be dismissed or refused recognition or enforcement. Nonetheless, public policy does not necessarily override parties’ autonomy. Taking into consideration the types and nature of public policy, and the level of violation, there are scenarios where parties’ autonomy prevails. This paper introduces the concepts of party autonomy and public policy. It then explores their status under the international commercial arbitrations and tries to categorize their conflicting relations through analyzing related cases in order to find out arbitral tribunal’s or courts’ perspectives on this issue.
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