Papers by Nuno Albuquerque
With the rapid growth of International Trade, parties are free to determine the terms of their bu... more With the rapid growth of International Trade, parties are free to determine the terms of their business relationship. This is in accord with the contractual doctrine of party autonomy. To this extent, arbitration agreements are often inserted in their contracts as a method of dispute settlement rather than the traditional method of dispute resolution through the instrumentality of the courts. By referring their disputes to arbitration, parties are in essence agreeing to be bound with finality by the award of the arbitral tribunal. The binding nature of the award does not however mean that the courts do not have a role to play in arbitral proceedings. They often assist or interfere according to the boundaries of national laws. The line between assistance and interference is often blurred and depends on several factors. On the whole, there appears to be a puzzle as to who actually determines the powers and jurisdiction of the arbitral tribunal notwithstanding the expressed autonomy of the parties. Where does the tribunal derive its powers and jurisdiction and to what extent is it exercised in the face of the pervasive and 'supervisory' role of the courts? The aim of this paper is to determine who decides these questions. Arbitration laws and rules will serve as a guide alongside arbitral awards and decided cases. The paper will conclude that the answers depend on several factors including the national and international law in question.
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Papers by Nuno Albuquerque