Choice of Law in International Commercial Arbitration

By Okezie Chukwumerije | Go to book overview

elaborate principles that are sufficiently common and sufficiently specific to govern factual situations." 131 The harmonization of State practice in certain areas of law--for example, in response to the projects undertaken by the United Nations Commission on International Trade Law--might lessen the task of identifying general principles. Nonetheless, there will still exist areas in which State practices continue to differ in significant ways, 132 with the result that it is difficult to distill general principles.

Most of the attempts to determine general principles so far have involved the comparative examination of the laws of developed Western countries. 133 The rationale for this may be that laws in most developing countries are largely influenced by those in countries that formerly colonized them. This view contains some element of truth, but there are still large areas in which laws in developing countries take their own individual courses. Thus, the problem of identifying general principles would be further compounded if the comparative methodology involved in this process includes the examination of laws in developing countries, as indeed should be the case.

A commentator has suggested that the problem of identifying general principles may be attenuated by comparing only the principles recognized in the legal systems of the parties involved in the particular dispute. 134 Thus, in a dispute between a Swiss party and a Taiwanese party, the arbitral tribunal, in applying general principles, will apply those principles of law that are common to Switzerland and Taiwan. This is an idea that merits serious consideration, but where the laws of the parties' nationalities differ radically from each other, the process of elaborating general principles would be no less onerous than a project involving a broad selection of legal systems. Even if the principles in both States coincide, they cannot, properly speaking, be labeled general principles as they would not necessarily be general to a broad selection of other States.

The truth is that despite the attraction of the concept of general principles of law to academic writers and some arbitrators, these principles do not constitute a readily identifiable and comprehensive system of rules to regulate the complex contractual relations that are often involved in State contracts. It would seem that any principle that is indeed general to a genuinely representative selection of legal systems would often be too broad as to be unhelpful in specific cases. 135 It is this writer's view that municipal law remains the most appropriate body of law for application to State contracts.


CONCLUSION

At the beginning of the discussion of applicable substantive law to State contracts, it was stated that one of the foremost characteristic of such contracts is their inherent instability. Presumably, all contracts could be viewed as intrinsically unstable because they are based on present material

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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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