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Title: Public policy v. party autonomy in international commercial arbitration
Author: Vafaeian, Leila
ISNI:       0000 0004 6352 4047
Awarding Body: Newcastle University
Current Institution: University of Newcastle upon Tyne
Date of Award: 2016
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The purpose of this thesis is to examine and analyse the scope and extent of judicial involvement in international commercial arbitration, with specific emphasis on its consequences for Iran. As an alternative form of dispute resolution under the jurisdiction of national courts, arbitration involves the establishment of a private jurisdiction over disputes, and is implemented through the creation of commercial contracts that derive their authority from the parties’ free will and autonomy. However, in reality, arbitration is not a separate and free-standing system of justice. It is a system established and regulated pursuant to law, which is never independent from the supervisory authority and control of national courts over the arbitration system. International commercial arbitration involves finding a balance between individual freedom of contract and the sovereign right of states as exercised through their national courts to exert some control and influence over the international arbitration process. Arbitration in practice is essentially a mixture of contract and litigation. The voluntary consent of the parties is a reflection of its contractual bedrock, while its binding character draws elements of the judiciary into it. A richer grasp of the application of the principles of party autonomy and states’ jurisdictional rights in arbitration is therefore vital to a full comprehension of the operation of international commercial arbitration. Thus, this thesis examines and critically analyses the freedom of the parties in arbitration, the limits of the parties’ freedom or autonomy, the role of national laws in setting those limits, and the role of national courts in regulating those limits in both the place of seat and enforcement place. It is frequently emphasized that modern international commercial arbitration needs more freedom from the supervision of the state courts. While many states’ legislations recognise the principle of party autonomy, at the same time, in practice, they also seek to establish a framework for judicial intervention in arbitral proceedings in certain instances, such as public policy. National legal systems have reserved space for the domestic system to restrain the potential excesses of free will, so that party autonomy cannot go beyond it. This thesis advances the concept of ‘nationality’ as an essential aspect of the way in which the modern international arbitral framework seeks to strike a balance between party autonomy and public policy. It concludes that by fixing the nationality, parties are able to identify the primary and secondary jurisdictional authority, mandatory rules and the procedural law applicable to the whole arbitration process. The primary authority exercises its powers to intervene in the arbitration process to provide the necessary assistance and support to arbitration. iii This thesis concludes that the Iranian Civil Procedure Code, legal doctrines, and arbitral practices have generally recognised the party autonomy principle and enforce it in individual contractual relationships. According to Iranian law, the intention and consent of citizens is important in entering into contracts and, without the consent of the parties, there is no valid contract. Iranian legislators also provide the grounds on which party autonomy and parties’ free will are limited.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available