Limits to Party Autonomy at the Post-Award Stage: Chapter 14

Limits to Party Autonomy in International Commercial Arbitration, Franco Ferrari ed., 2016

NYU School of Law, Public Law Research Paper No. 16-28

53 Pages Posted: 31 Aug 2016

See all articles by Prof Maxi Scherer

Prof Maxi Scherer

Queen Mary, University of London, Centre for Commercial Law Studies

Linda Silberman

New York University School of Law

Date Written: August 30, 2016

Abstract

This article by Professors Scherer and Silberman examines the role of party autonomy in arbitration at the post-award stage, i.e. whether parties can agree in their arbitration agreement to the expansion or restriction of judicial review of the award by national courts at the seat of the arbitration. In most jurisdictions, statutory provisions govern review of the award, and in some jurisdictions, these provisions also address the question of whether the parties can agree to a more restrictive, or even more expansive, review. In other jurisdictions, the role of party autonomy on the issue is addressed by case law. The authors provide an overview of the different positions on these questions from various jurisdictions, including the significant decision in 2008 by the United States Supreme Court in Hall Street Associates, LLC v. Mattel, Inc. In the final section of the article, the authors survey the relevant policy considerations for deciding how to treat the parties’ agreement to expand or restrict the review by national courts and offer their own normative perspective as to the appropriate approach.

Suggested Citation

Scherer, Maxi and Silberman, Linda, Limits to Party Autonomy at the Post-Award Stage: Chapter 14 (August 30, 2016). Limits to Party Autonomy in International Commercial Arbitration, Franco Ferrari ed., 2016 , NYU School of Law, Public Law Research Paper No. 16-28, Available at SSRN: https://ssrn.com/abstract=2832429

Maxi Scherer

Queen Mary, University of London, Centre for Commercial Law Studies ( email )

67-69 Lincoln's Inn Fields
London, WC2A 3JB
United Kingdom

Linda Silberman (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6204 (Phone)
212-995-4341 (Fax)

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