[Thesis]. Manchester, UK: The University of Manchester; 2016.
Nowadays, arbitration is increasingly defined by its procedural flexibility and suitability
to adapt to the needs and circumstances of different parties in different situations.
In so being, arbitration employs the agreement to arbitrate as the device through
which parties can utilise this procedural flexibility to create an exceptionally party-oriented
process. Consequently, the drafting of these agreements and the choices concluded
by the parties in them can very much determine whether a particular process is going
to produce an efficient and effective outcome or rather frustrate the intentions of
the parties and, generally, the objectives of international commercial arbitration.
This thesis looks into the most influential decisions/choices made by the parties
during the drafting stage of their arbitration agreements and attempts to underline
the best practical and legal techniques to approach these decisions within today’s
modern regulations of international commercial arbitration. The thesis begins its
analysis by examining the separate procedural nature of arbitration agreements in
comparison to the substantive nature of ordinary contracts. Such examination revealed
that the separability of arbitration agreements produces certain consequences that
can potentially uphold arbitration agreements in situations where the main contract
was found illegal, non-existent, or invalid, for instance. A clear recognition of
the distinct nature of arbitration agreements and the effects of that on the status
of arbitration clauses, specifically, can provide the parties, from the very beginning,
with rather precise expectations as to the future status of their arbitration agreement.In
focus on the role of parties’ autonomy in producing timely awards, it was essential
to analyse the different limitations that could restrict this autonomy and, possibly,
frustrate the expectations and intentions of the parties. Such analysis revealed that
these limitations were limited to incapacity, non-arbitrability, waiver of right to
arbitrate, as well as public policy and mandatory rules of law. Finally, in scrutinising
the most influential choices which parties can make in their arbitration agreement
to positively and effectively create an intelligent international arbitration settlement,
it was found that these choices mainly consisted of the choice of the seat of arbitration,
the arbitrators, the language of the arbitration, and the law(s) applicable to the
arbitration. Throughout this thesis, it is argued that through the consensual nature
of international arbitration along with the autonomy bestowed upon its parties, the
latter can have a better chance of achieving a practically and legally efficient settlement.