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.
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.
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.
330 U.N.T.S. 38; T.I.A.S. 6997; 21 U.S.T. 2517.
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."
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.
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.
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.
Tobler c/ Justizkommission des Kantos Schwyz ( 1933) ATF 59 I 177.
( 1985) 3 ASA Bulletin19.
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
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Choice of Law in International Commercial Arbitration.
Contributors: Okezie Chukwumerije - Author.
Publisher: Quorum Books.
Place of publication: Westport, CT.
Publication year: 1994.
Page number: 62.
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