The question this paper seeks to address is whether arbitral discretion, by freewheeling, addresses the issues raised without compromising procedural autonomy.
It is important to explain what procedural autonomy means before delving into the discussion. Simply put, procedural autonomy means set procedures based on independent rules and norms followed over time and respected and recognised as such without being questioned by the parties that subject themselves to them. In arbitration, it may refer to arbitration rules set by a tribunal system or the national legislations regulating arbitration in a particular legal jurisdiction. By and large, it is the whole philosophy of having pre-determined rules and norms that the arbitrators are discouraged from departing from during the process of arbitration. This does not mean that the arbitrators cannot exercise their discretion. In fact, the whole arbitration process is based on discretion, but rather that the discretion must be exercised within a known procedural framework.
Since arbitral discretion deals with procedural matters as well it is often the practice of arbitrators to decide on the issues involved at pre-trial. Such pre-trial issues may include discovery of documents, admission evidence and raising of issues for determination. On the face of it the arbitrators may employ their discretion to decide how much of which evidence to be taken meanwhile faced with a challenge to decide which arbitration model to employ in conducting the pre-trial engagement if the parties are from two or more conflicting arbitration jurisdictions.
Inhaltsverzeichnis (Table of Contents)
- Introduction
- Arbitral discretion
- Procedural autonomy
- Arbitral discretion and procedural autonomy
- Conclusion
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This paper aims to examine the relationship between arbitral discretion and procedural autonomy in arbitration proceedings. It delves into the debate surrounding the benefits and drawbacks of both approaches, ultimately exploring whether arbitral discretion effectively addresses concerns without jeopardizing procedural autonomy.
- The impact of arbitral discretion on procedural autonomy
- The advantages and disadvantages of arbitral discretion
- The importance of establishing clear procedural protocols
- The tension between flexibility and fairness in arbitration
- The role of procedural rules in ensuring transparency and justice
Zusammenfassung der Kapitel (Chapter Summaries)
- Introduction: This section introduces the central question of the paper: how has arbitral discretion affected procedural autonomy in arbitration proceedings? It highlights the debate surrounding the value of rules and the potential risks of discretion, setting the stage for the analysis that follows.
- Arbitral discretion: This chapter defines arbitral discretion as the practice of allowing arbitrators to conduct proceedings in a manner they deem appropriate, as long as they uphold fairness and due process. It explores the rationale behind this practice, highlighting its potential benefits in tailoring procedures to specific disputes. However, it also acknowledges concerns about the lack of certainty and potential for bias arising from excessive discretion.
- Procedural autonomy: This chapter explains the concept of procedural autonomy as the presence of established, independent rules and norms that guide arbitration proceedings. It emphasizes the importance of pre-determined frameworks to ensure consistency and predictability. This chapter also discusses how procedural autonomy may be impacted by institutional provisions that grant arbitrators wide discretion.
- Arbitral discretion and procedural autonomy: This chapter delves into the complexities of the relationship between arbitral discretion and procedural autonomy. It explores challenges associated with arbitral discretion, including potential for bias, uncertainty for parties, and conflicts over procedure selection. The chapter argues for a balance between flexibility and certainty, emphasizing the need for default protocols to address concerns raised by discretion.
Schlüsselwörter (Keywords)
The primary focus of this paper lies on the interplay between arbitral discretion and procedural autonomy in arbitration proceedings. Key concepts explored include: arbitral discretion, procedural autonomy, due process, fairness, transparency, rule light vs. rule rich, ex ante vs. ex post rules, institutional provisions, and the potential for bias.
- Quote paper
- Adams Rajab Makmot-Kibwanga (Author), 2017, Arbitral Discretion and Procedural Autonomy, Munich, GRIN Verlag, https://www.hausarbeiten.de/document/454738
