Choice of Law in International Commercial Arbitration

By Okezie Chukwumerije | Go to book overview

CHAPTER THREE
Law Governing Arbitration
Proceedings

INTRODUCTION

The proposition that municipal courts are bound by the procedural laws of their legal system can not be gainsaid. Municipal courts, created and empowered by the national laws of their situs, conduct their proceedings in accordance with rules contained in these national laws. A judge sitting in a municipal court is thus constrained to apply the conflict and procedural rules of his or her situs. Even in situations where a dispute implicates matters of international business or involves parties who reside outside jurisdiction, a municipal judge remains obliged to utilize domestic conflict and procedural rules in resolving the dispute, although in some cases the law applicable to the substance of the dispute may be a foreign law.

When a party submits to the jurisdiction of a municipal court, the party concurrently acknowledges that the court will exercise its jurisdiction in conformity with the procedural rules of its situs. Indeed, it is never the case that a municipal court sitting in one country conducts its proceedings according to the procedural laws of another country. The only question that sometimes arises in this connection is where to draw the line between procedural and substantive law, because although a judge is constrained by national procedural law, the judge may find that a foreign substantive law is applicable to the merits of the dispute.

Procedural rules reflect the process by which courts exercise the powers conferred on them by their national law, and these rules embody the country's notions of how disputes should be resolved fairly and efficiently. Thus, the rules ensure the impartiality of judges, grant disputants adequate opportunity to prepare their cases, and safeguard the ability of the disputants to present their cases in a fair and equitable manner. Clearly, procedural rules vary among countries, for each country fashions its rules to

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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
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