Choice of Law in International Commercial Arbitration

By Okezie Chukwumerije | Go to book overview
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recognition and enforcement stage of the arbitral process, and does not extend to the arbitration stage. Nevertheless, it lays down minimum standards that must be met before an award can be enforced. 139 These prerequisites for enforcement provide an indirect guideline for the conduct of arbitrations since only awards that conform to them can be enforced under the convention.

However, the limited scope of the convention prevented it from stipulating detailed provisions for the conduct of arbitration proceedings. It is in this area that most States have introduced domestic standards to cover the lacunae left by the convention. Some of these domestic standards embody inflexible rules that are not amenable to the needs of international commerce, and that may, where they are mandatory, frustrate the objectives of the parties. 140 To ameliorate this problem, the Model Law was designed to establish a uniform legal framework for the fair and efficient conduct of arbitration proceedings. Elaborated by arbitration experts and representatives from various countries and international agencies, the Model Law seeks to refurbish and unify national laws dealing with international commercial arbitration. "In view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration," the United Nations General Assembly recommended member States to adopt the Model Law. 141 If well received by member States, it would unify national laws on international arbitration, thereby precluding international arbitrations from being subject to the domestic peculiarities of the place of arbitration.

Thus, the present trend inclines toward the harmonization of international arbitral practices through the provision of internationally accepted standards for the conduct, regulation, and enforcement of arbitration proceedings and awards. Significantly both the New York Convention and the Model Law, which are the two major international projects on arbitration, recognize the doctrine of party autonomy and provide liberal arbitration regimes that respect the will of the parties, while at the same time demanding that arbitrations conform with the international minimum standards they embody. As this trend toward the harmonization of arbitration practice continues, there would be little need for delocalization.

This is why an award may be set aside or recognition denied if the arbitrators exceed the powers granted them by the parties. See Article 52(1)(b) of the Washington Convention, Articles 34(2)(a)(iii) and 36(1)(a)(iii) of the Model Law, and Article V(1)(c) of the New York Convention. For a somewhat extreme version of the basis of arbitral authority, see the preliminary award in ICC Case 2321 of 1974, where the arbitrator said:

I myself do not see the need for referring to any particular set of national law rules or the court practice of any particular country. . . .


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Choice of Law in International Commercial Arbitration


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