
Contents
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General General
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Theoretical Basis of Party Autonomy Theoretical Basis of Party Autonomy
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The Arbitration (Scotland) Act 2010 The Arbitration (Scotland) Act 2010
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Party Autonomy in International Practice Party Autonomy in International Practice
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Party autonomy in international documents Party autonomy in international documents
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Party autonomy in national laws Party autonomy in national laws
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Restrictions on Party Autonomy – Mandatory Rules and Public Policy Restrictions on Party Autonomy – Mandatory Rules and Public Policy
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Theoretical basis of mandatory rules and public policy Theoretical basis of mandatory rules and public policy
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Public policy Public policy
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Domestic public policy Domestic public policy
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International public policy International public policy
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Transnational public policy Transnational public policy
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Mandatory rules Mandatory rules
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Mandatory rules in the Arbitration (Scotland) Act 2010 Mandatory rules in the Arbitration (Scotland) Act 2010
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Mandatory rules on commencement and constitution of tribunal etc Mandatory rules on commencement and constitution of tribunal etc
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Mandatory rules on jurisdiction of tribunal Mandatory rules on jurisdiction of tribunal
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Mandatory rules on general duties Mandatory rules on general duties
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Mandatory rules on powers of court in relation to arbitral proceedings Mandatory rules on powers of court in relation to arbitral proceedings
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Mandatory rules on awards – rr 48, 50, 54 and 56 Mandatory rules on awards – rr 48, 50, 54 and 56
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Mandatory rules on arbitration expenses – rr 60 and 63 Mandatory rules on arbitration expenses – rr 60 and 63
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Mandatory rules on challenging awards – rr 67, 68 and 70–72 Mandatory rules on challenging awards – rr 67, 68 and 70–72
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Mandatory rule on miscellaneous provisions – rr 73–77, 79 and 82 Mandatory rule on miscellaneous provisions – rr 73–77, 79 and 82
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5 Party Autonomy and its Restrictions
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Published:April 2011
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Abstract
This chapter discusses the principle of party autonomy in arbitration. The principle of party autonomy is manifested in the parties' freedom in designing the arbitration procedures to suit their needs. However, party autonomy is not unlimited. It can be restricted by mandatory rules and public policy, which are used to make sure that arbitration is carried out according to a minimum level of standard. This chapter begins with an overview of the theoretical basis underlying the principle of party autonomy. It then considers how the principle is adopted in practice, both internationally and nationally, with particular emphasis on the theory of the freedom of contract and its effect on the mechanism of international commercial arbitration, along with party autonomy in national laws. The next section analyses the exceptions to the principle of party autonomy, namely: mandatory rules and public policy. Finally, the chapter examines the principle of party autonomy as spelled out in the Arbitration (Scotland) Act 2010.
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