Autonomy of the Arbitration Agreement: Danger of Broad Interpretation
pages 3 - 15
ABSTRACT:

The autonomy of the arbitration agreement is recognized as a fundamental principle of international commercial arbitration. Initially, the concept of autonomy was elaborated to reinforce an arbitration clause, duly executed by the parties, despite the possible invalidity of the underlying contract. Although this clause was considered to be a contractual provision, it retained its independence from the contract due to the specific goals sought by the parties. In time this principle became so embedded in the minds of academics and practicing lawyers that the link between the arbitration clause and the underlying contract ceased to attract their attention. Anxiety over arbitration provisions was transformed into the overzealous belief in their domination over other contractual terms. As a consequence, the various obstacles put up by national legal instruments to prevent unfair tricks in international business transactions were overcome by inclusion of the arbitration clause, which entails the settlement of disputes not in a public, but in a private manner. The aim of the following paper is to demonstrate the unjustifiably broad application of the arbitration agreement’s autonomy by examining relevant cases in arbitration and judicial practice.

keywords
Autonomy of the arbitration agreement
arbitration clause
non-existence
invalidity of the underlying contract
arbitrability
illegality of the underlying contract
fraud
bribery
corruption
about the authors

Vasily N. Anurov is a candidate of jurisprudence, lecturer at the Faculty of Private International Law, Moscow State Law Academy, Arbitrator of the Vilnius Court of Commercial Arbitration. Also, he holds LL.M. in Mineral Law and Policy with distinction (Dundee, Scotland).

e-mail: vasily.anurov@googlemail.com