An Analysis of the Autonomous Theory in International Commercial Arbitration

Abstract

Today, international arbitration is considered as one of the most efficient methods of resolving disputes in foreign trade, which is considered a more efficient option for managing foreign trade disputes in many ways compared to national courts. In relation to the investigation of the nature of international commercial arbitration, several theories have been proposed, one of the most important and certainly the most challenging of them is the theory of arbitration independence. In this research, we will examine many aspects of this theory and how it works in foreign trade. Different arbitral legal theories have different views on the autonomy of arbitration, with which they usually refer to its independence from national legal orders. Based on autonomous theory, the arbitrator is not forced to consider specific parochial requirements of each State’s public policy, but he only must consider the main rules which are arising out of the international community. Arbitration is actually an institution whose main purpose is to serve the community of international businessmen, for this reason, it should not be used to promote the interests or fairness of the national governments related to arbitration, regardless of the country of the seat of arbitration or the country where the arbitration award is executed. Based on this point of view, any intervention of national courts that is against the assumed will of the contracting parties will actually reduce the efficiency of the arbitration institution in foreign trade, because practically, by choosing an arbitration institution, individuals want to free themselves from the constraints of national laws and not be under the rule of any specific national legal system. Proponents of autonomous theory, believe that the involvement of courts and national laws in the process of international commercial arbitration reduces the usefulness of the arbitration institution, because on the one hand, national laws do not have the ability to properly manage disputes in international trade and on the other hand, the intervention of the national court can make the arbitration process slow and complicated and therefore ineffective and finally, it will reduce the usefulness of the arbitration institution for the merchants. According to this view which has been approved by some national legal systems such as French law, basically international arbitration has a transnational nature and for this reason, the arbitration award issued in a case is not related to any national legal order and in fact has an international character. According to this view today, we are witnessing a new arbitration system in the international arbitration community which shows a new private order, above any national legal system that instead of relying on customs and national norms it is evolving based on the transnational principles and rules of international arbitration. In the view of supporters of independence theory, this is the new approach that will only help to ensure the efficiency of arbitration in foreign trade. Because this approach is completely based on the principle of independence and sovereignty of the contracting party's will in international commercial arbitration which emphasizes the spontaneous and non-governmental nature of arbitration in accordance with transnational conditions of international business in foreign trade, on the basis of which the origin of arbitration rules and regulations is independent of all national legal systems, and in fact, it is the arbitration agreement that is of primary importance in the arbitration process, not the law of the seat of arbitration. The material presented in this research shows that, not only theoretically but also practically, national courts in different countries in line with the common practice in foreign trade tend to acknowledge the independent nature of international commercial arbitration. For this reason, today, along with the national legal systems, we are witnessing a new legal system called the legal system of arbitration, whose principles and rules are based on the principles and procedure of international arbitration beyond referring to any specific legal system of a country. This new legal order with its self-regulation feature emphasizes the non-national nature of arbitration in foreign trade and as it will be analyzed in this research, it brings important results which in practice cause the arbitration institution to be more efficient for the international business community and it will also cause the maintenance and promotion of the advantages of arbitration as an effective dispute resolution method for businessmen as private actors in cross-border trade.

Keywords

• international commercial arbitration
• national court
• businessmen
• nature of arbitration