Choice of Law in International Commercial Arbitration

By Okezie Chukwumerije | Go to book overview
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are most directly implicated by the commercial transactions underlying the parties' agreement. It was argued that reliance on the law of the forum (either that where enforcement of the arbitration agreement or the arbitration award is sought), could lead to the use of a law totally unconnected with the commercial transaction in determining arbitrability, a result that was considered objectionable because the country whose national interests are directly implicated by the commercial transaction has a more legitimate claim in regulating objective arbitrability.


NOTES
1.
W. Craig, W. Park, and P. Paulsson, International Chamber of Commerce Arbitration, 2d ed., (Dobbs Ferry, NY: Oceana Publications, 1990) at 49; J. Lew, "Arbitration Agreements: Form and Character" in P. Sarcevic (ed.) Essays on International Commercial Arbitration ( London: Martinus Nijhoff, 1989) 51 at 52.
2.
Y. Derains, "France" ( 1981) 6 Y. Comm. Arb. 1 at 4; R. David, Arbitration in International Trade (Deventer, The Netherlands: Kluwer Law and Taxation Publishers, 1985) at 171.
3.
330 U.N.T.S. 38; T.I.A.S. 6997; 21 U.S.T. 2517.
4.
Article II(1). There is provision to the same effect in the Model Law. Article 7(1) of the Model Law defines arbitration as "an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship."
5.
It should be noted that this issue does not arise in submission agreements that are independent arbitration agreements entered into in relation to existing disputes. The question of autonomy arises only in cases where the arbitration agreement is a clause in a larger commercial contract.
6.
The main advantage of this principle is that it constitutes a serious bar for a party who desires delay or wishes to repudiate the arbitration agreement or to subvert the arbitration clause by questioning in court the existence and validity of the agreement to arbitrate. See T. Szurski, "Arbitration Agreement and Competence of the Arbitral Tribunal" in P. Sanders (ed.) UNCITRAL's Project for a Model Law on International Commercial Arbitration (Deventer, The Netherlands: Kluwer Law and Taxation Publishers, 1984) 53 at 76. See also J. Robert and T. Carbonneau, The French law of Arbitration ( New York: Matthew Bender, 1983) at 11: 2-19.
7.
See W. Craig et al., supra note 1, at 66. In their view, if the invalidity of the substantive contract reaches the arbitration agreement,

it is presumed that even though the parties may have signed an invalid contract (because, for example, it is contrary to competition law) they nevertheless expressed a separate and valid intent that any dispute arising in connection with the contract should be resolved by arbitration. That intent is then viewed as extending to cover the consequences of the invalidity of the contract (assuming the arbitral tribunal in fact finds it to be invalid). Id.

8.
See Tobler c/ Justizkommission des Kantos Schwyz ( 1933) ATF 59 I 177.
9.
( 1985) 3 ASA Bulletin19.
10.
This position is codified in the 1987 Swiss Private International Law Act. [A translated version of the legislation approved by the Swiss Arbitration Association is published in ( 1989) 14 Y. Comm Arb.511.] Article 178(3) of the act provides

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