Jacob Dut Chol Riak

Abstract

International commercial arbitration has remained the greatest hallmark in legal fraternity in addressing disputes arising from international commercialization. While the principles of neutrality and flexibility are very essential, the interrogation of arbitral discretion, default setting and procedural autonomy has become critical in this disputes crippled world. The study discussed the important of arbitral discretion, default settings and procedural autonomy. Moreover, its tackled institutional rules in recognition of arbitral discretion, default settings and procedural autonomy. Although the study analyzed arbitral discretion and its impact on procedural autonomy, its appraised the arbitral discretion with default settings.

While the study used multi case studies, it deployed systematic empirical literature review on institutional rules for various international arbitration centers in synthesizing the relationships between arbitral discretion, default setting and procedural autonomy. The findings indicate that arbitral discretion and default setting clauses are meant for the pursuit of natural justice in international arbitration. Although they can be abused and arbitrators can turn bias, they are independent clauses and none can replace one another. Nonetheless, they are made successful through strict application of procedural autonomy provided the procedural autonomy is not hijacked.

The study concludes that although the future of arbitral discretion may look bleak due its nature of hijacking procedural autonomy, arbitral discretion continued being applied in its relevant situation. Default setting and procedural autonomy should co-existence as each of them ensures that fairness and justice is rendered in the international commercial arbitration. Further research is recommended to the legal scholars to study the future of default setting on procedural autonomy in complex international commercial arbitration situations.

Keywords: International commercial arbitration, arbitral discretion, default setting, procedural autonomy, institutional rules, arbitrators

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