Party Autonomy: The Triumph of Practical Considerations
Throughout this volume, we have explored conflict and disagreement--about jurisdiction to prescribe, jurisdiction to adjudicate, responsibility of multinational enterprises, enforcement of judgments, and scope of disclosure or discovery in international controversies. In truth, the area of disagreement is not quite as vast as the preceding chapters would indicate. Nearly everyone agrees, today, (1) that parties to a commercial transaction (putting aside certain consumer contracts) may agree on the law applicable to their relations; (2) that they may choose the forum to resolve any disputes that may arise between them; and (3) that they can remove state organs almost completely from the process of adjudication by choosing to have their disputes resolved by arbitration. Moreover, while agreement on a judgments convention reaching beyond the European Community and its immediate neighbors has thus far been unattainable, a convention to enforce arbitral awards (as well as agreements to arbitrate) has more than a hundred adherents, including all the world's commercial states and states from all legal traditions and at all stages of legal development.1 Thus states have committed themselves to enforce with very limited scrutiny arbitral awards rendered in countries whose judgments they might well decline to recognize or enforce, and by persons whom no state has screened--all because, it is said, the parties to the arbitration agreed to the forum of their own free will--by autonomie de la volonté, in the more elegant French expression.
Parties engaged in international transactions and their lawyers want to know where disputes that may arise will be adjudicated, and even if they have made no investigation of the details of the possibly applicable laws, they want to know what law will be applied by the decision-maker. Rightly or wrongly, many parties are fearful of litigating in the other party's home state, and if they can, they seek to specify 'their' forum. If the bargaining or marketing situation does not permit that, the parties look for a 'neutral' forum, which may be a court in London or Geneva but more and more turns out to be an arbitral____________________