Choice of Law in International Commercial Arbitration

By Okezie Chukwumerije | Go to book overview

reason for a particular country to insist on regulating the entire transaction, since this may in practice have extra-territorial ramifications. 174 This consideration is one of the reasons why most countries are apt to treat international contracts less stringently than their domestic counterparts.

The liberal treatment of international arbitration has also been justified on the basis of comity and the special needs of international commerce. 175 In Scherk v. Alberto-Culver Co., 176 the court, swayed by the "truly international (character of the) agreement," disregarded the fact that securities disputes could not be arbitrated domestically, and held that such disputes were arbitrable in international disputes. The same consideration influenced the Mitsubishi court, 177 and the French courts in the San Carlo178 and Galakis179 cases.

Recognition of the fact that international arbitration is amenable to the needs of the international business community has made arbitration attractive as a means of decongesting the court system. The more the process is utilized, the less the pressures on the overcrowded court system. 180 The doctrine of objective arbitrability is nonetheless a means by which States declare what they consider the outer limits of private arbitration and the proper scope of matters that fall within the exclusive jurisdiction of national courts. Arbitrators should respect the rules on arbitrability of those jurisdictions whose policy interests are directly implicated by the parties' commercial transactions.


CONCLUSION

In this chapter we examined the law relating to arbitration agreements. The chapter outlined the doctrine of the juridical autonomy of arbitration agreements, and its corollary principle that the law applicable to an arbitration agreement is not necessarily coterminous with that applicable to the substantive contract. It was noted that it is spurious to utilize the law of the seat of arbitration as an alternative test in determining the validity of arbitration agreements, and the formulation of a "close connection test" was advocated.

It was argued that different considerations applied in determining the law relating to the capacity of States to arbitrate and the authority of their officials to bind them in valid arbitration agreements. It was submitted that the efficacy of national law restrictions should be different in either case. Whereas international public policy precludes a State or its agency from relying on its incapacity under its national law as grounds for challenging an arbitration agreement, private parties should be required to verify the authority of State officials--under the national law of the State concerned-- to bind the State or its agencies in a valid arbitration agreement.

Finally, it was suggested that objective arbitrability should be determined in accordance with the law of the country whose national interests

-61-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
Choice of Law in International Commercial Arbitration
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface xi
  • Chapter One - General Introduction 1
  • Introduction 1
  • Notes 19
  • Chapter Two - the Arbitration Agreement 29
  • Introduction 29
  • Conclusion 61
  • Notes 62
  • Chapter Three - Law Governing Arbitration Proceedings 75
  • Introduction 75
  • Conclusion 97
  • Notes 98
  • Chapter Four - Law Governing Substantive Issues 107
  • Introduction 107
  • Conclusion 134
  • Notes 134
  • Chapter Five - Issues in the Law Applicable to State Contracts 143
  • Introduction 143
  • Conclusion 164
  • Notes 168
  • Chapter Six - Mandatory Rules of Law in International Commercial Arbitration 179
  • Introduction 179
  • Conclusion 194
  • Notes 194
  • Chapter Seven - Conclusion 199
  • Introduction 199
  • Selected Bibliography 205
  • Index 215
  • About the Author 219
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen
/ 228

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.