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Intention Parties in International Commercial Arbitration (Essay Sample)

This unit is International Commercial Arbitration QUESTION: Intention of the parties in international commercial arbitration 1. What is the role of the intention of the parties in determining the governing or applicable law in an international commercial arbitration? 2. When does the intention of the parties become decisive in determining the governing or applicable law in an international commercial arbitration? 3. Can you cite and explain grounds or circumstances in which the intention of the parties may be ignored or denied in an international commercial arbitration? Instructions 1. Relevant arbitral awards and/or judicial decisions may be cited in support of your answers; 2. Approximately equal number of words, 600-700 words, for each question, totalling 2000 words maximum; and 3. Total word count must be shown on the cover page of the assignment. Only the Australian Guide to Legal Citation 3rd Edition is to be used for referencing. Please see below books to help you. I prefer to use some of them. Thanks source..
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Word Count: 2002 Words
The contractual basis of arbitration has been frequently reaffirmed in legislation. One of the most important consequences of this reaffirmation in general terms is that international arbitration is subject to the parties’ intention and not the practical rule of law of the position of the arbitration. This explains why the judicial systems of international arbitration do not weaken the quality based principle of party independence. On the other hand, international arbitration owes its success to the development of permanent arbitral institutions and the participation of these institutions reducing the role of parties. The contract between these parties is the main component of international arbitration. It is these parties shared interest that confers powers upon the arbitrators.
Another important role of intention played by the parties is that their consent provides a foundation for the authority of the arbitrator to make decision regarding the dispute. In addition, the parties consent limits the arbitrator’s authority because decisions can only be made within the extent of the initial parties’ concurrence. The arbitrators are also expected to choose laws in regard to the parties’ choices. Rule and procedures must also adhere to the parties’ choice and initial agreement. This ability to choose the set laws to be used in the arbitration is based on the autonomy of the parties involved in the contract. For example, the US federal law and the international arbitration treaties recognize the impertinence of observing party autonomy. In general cases, the arbitrator is always served with a written consent from the parties for any future resolution of a dispute between them. However, submission agreement can also be signed should a dispute arise when the parties do not have an arbitration clause in their contract.
Parties in international commercial agreement have the right of choice of laws to be used in the application of the contract. This principle is commonly referred to as the doctrine of party independence. Jansen stated that ‘this principle act contains the power of the parties in making prior choices and making choices of the laws to be used in the execution of the arbitration’. This party autonomy provides the contracting parties with an opportunity to avoid the application of laws that are unfavorable to international business or dispute. For this reason, Julian, Stefan & Loukas argues that the “arbitral tribunal shall make decisions regarding the dispute based on the rules and laws chosen by the parties in the dispute as they are applicable to the substance of dispute” (Julian, Stefan & Loukas, above n 415 . Any other description of law or a legal structure of any given state or country shall be interpreted, unless otherwise ...
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