Browsing by Subject "İrade muhtariyeti"

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Party autonomy vs. case management in international arbitration
(Banka ve Ticaret Hukuku Araştırma Enstitüsü, 2013) Patocchi, Paolo Michele
The author discusses the relationship between two rules in international arbitration: party autonomy, on the one hand, and the principle whereby an arbitrator has a duty to act as a good case manager and to conduct the arbitration fairly, expeditiously and without unnecessary costs on the other. Whereas the first rule is virtually universal, the second has been clearly spelt out in the English Arbitration Act 1996, for the first time. However, it is quickly spreading as a consequence of the recent reform of the ICC Rules (2012) and their considerable influence on international arbitral practice. There is a tension between these principles. This is so especially in those jurisdictions in which the parties may agree on procedural arrangements without consulting the arbitrators, even in case the arbitral tribunal has already been constituted. Received wisdom has it, especially in England, that an experienced arbitrator has the skills, the charisma and the authority required to let the parties know that their procedural arrangement, agreed as it may have been, is neither conducive nor sound. The author's answer is that the raising of eyebrows by an arbitrator does not, by far, attract the same consequences in all jurisdictions. The solution should not be looked for in arbitral diplomacy but in the law; the time has come to accept that arbitrators must be entitled to depart from unsound procedural agreements when it is right to do so; this is, of course, an exception to be resorted to most sparingly and to be applied only in those cases in which abiding by an agreed arrangement on a matter of procedure prevents the arbitrators from correctly carrying out their duties and would produce a perverse result. The position of the law at the place of arbitration is one of the points to be considered before using such an exception, especially in UNCITRAL Model Law jurisdictions, in which the disregard by the arbitral tribunal of a party agreement on procedure is a ground on which an award may be set aside.