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

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.