Freedom Ain’t Free: The Unspoken Rules of Party Autonomy in Arbitration
So, we’ve got this thing called “Party Autonomy” in international commercial arbitration. It’s the legal world’s version of being the boss of your own domain — you get to pick the battleground, choose the rules, handpick the arbitrators, and even set the boundaries of what you’re fighting over. It’s the reason why arbitration is the preferred choice for many — because who wouldn’t want to control their own fate, right?
But here’s where the plot thickens: your autonomy isn’t without strings attached. Think of it like running a business — you’ve got freedom, but there are regulations you can’t ignore. Mandatory laws are like those pesky, non-negotiable rules you’ve got to follow. They sneak in from the law of the arbitration seat, the law governing the arbitration agreement, or even from the specifics of the dispute itself. Take, for example, the Supreme Court of India’s ruling in Tata Sons Pvt. Ltd. v. Siva Industries and Holding Ltd. where it was made clear that the time limit for passing an arbitral award under Section 29A of the Arbitration Act doesn’t apply to international arbitrations. It’s like the court saying, “You can have your fun, but don’t forget, we’ve got our own clock here.”
Now, public policy? That’s the wild card. It’s the invisible hand that can slap down any agreement or award if it goes against the grain of fundamental principles in the relevant jurisdiction. We’re talking about big no-nos like corruption, human rights violations, or breaching competition laws. Like in the BST Textile Mills Private Limited v. Cotton Corporation of India Limited case, where the Bombay High Court upheld the validity of an arbitral award despite challenges, showing that public policy isn’t just a one-size-fits-all defense.
And let’s not forget the gatekeepers — the arbitral tribunals and courts. These are the
folks who step in when things get murky. Tribunals have the power to decide what’s admissible, what’s relevant, and whether they even have the jurisdiction to hear your case. Courts, on the other hand, are like the final checkpoint. They get to review the whole shebang — whether it’s to set aside an award or enforce a foreign one. For instance, in Goyal MG Gases Pvt. Ltd. v. Panama Infrastructure Developers Pvt. Ltd., the Delhi High Court ruled that rejecting an application to involve a non-signatory party doesn’t constitute an interim award and can’t be challenged under Section 34 of the Arbitration Act .
So, where does that leave us? Party Autonomy is awesome — it’s the reason why arbitration is quick, private, and tailored to your needs. But don’t be fooled into thinking it’s a free-for-all. There are boundaries — like mandatory laws, public policy, and the inherent powers of tribunals and courts — that you just can’t ignore.
As you navigate this terrain, keep a steady hand on your autonomy while keeping an eye on those potential landmines. Because at the end of the day, it’s all about balance — staying within the lines while playing the game your way.
By the way, these cases are your legal breadcrumbs, leading you through the maze:
- Tata Sons Pvt. Ltd. v. Siva Industries and Holding Ltd., Miscellaneous Application No 2680 of 2019 in Arbitration Case (Civil) No 38 of 2017.
- GTL Infrastructure Ltd. v. Vodafone Idea Ltd., 2023 SCC OnLine Bom 39.
3.Goyal MG Gases Pvt. Ltd. v. Panama Infrastructure Developers Pvt. Ltd., 2023:DHC:2276-DB.
- BST Textile Mills Private Limited v. Cotton Corporation of India Limited, 2023 SCC OnLine Bom 318.
- M/s N.N. Global Mercantile Private Limited v. M/s Indo Unique Flame Ltd. & Ors., Civil Appeal Nos. 3802–3803 of 2020.
- Palmview Investments Overseas Limited v. Ravi Arya & Ors., Commercial Appeal (L) №36947 of 2022.
- Tomorrow Sales Agency Private Limited v. SBS Holdings, Inc., FAO(OS)(Comm) №59/2023.
- M/s Mahesh Construction v. Municipal Corporation of Delhi & Anr., FAO 212/2010.
- Department of Transport, GNCTD v. Star Bus Services Private Limited, 2023 SCC OnLine Del 2890.
- B.L. Kashyap and Sons Limited v. Mist Avenue Private Limited, O.M.P. (Comm) 190/2019.
- Jaldhi Overseas PTE Ltd. v. Steer Overseas Pvt. Ltd., EC 100 of 2022.
- Homevista Décor & Furnishing Pvt. Ltd. v. Connect Residuary Pvt. Ltd., A.P. №358 of 2020 .
