DETERMINING THE PROCEDURE
How the procedure is determined
The Arbitration Acts 1950 to 1979 were silent on the question of who was to determine the procedure to be adopted in the arbitration. In practice the point was not of huge significance, as the parties would rarely have a view on what procedure ought to be adopted, and the matter was left to be determined by the arbitrators. In many cases the procedure was predetermined by the adoption by the parties of the arbitration rules of a trade association or other institution. The general view was, however, that the parties themselves had the overriding right to determine the procedure, subject to overriding rules of public policy requiring overall fairness, and could either fix the procedure themselves, adopt the rules of a trade association, or delegate the decision to the arbitrators.1 It was only where the parties did not make any determination for themselves that the matter reverted to the arbitrators.2 The principle of party autonomy is generally accepted, and is reflected by the Model Law, art 19(1), which provides that “the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings”. In the absence of any such agreement, art 19(2) of the Model Law authorises the arbitral tribunal “to conduct the arbitration in such manner as it considers appropriate”, subject only to the principle of equal treatment set out in art 18 of the Model Law.
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