Choice of Law in International Commercial Arbitration

Choice of Law in International Commercial Arbitration

Choice of Law in International Commercial Arbitration

Choice of Law in International Commercial Arbitration

Synopsis

International commercial arbitration poses unique challenges to the choice of law. Laws relating to the arbitration agreement, arbitral procedure, and the merits of a dispute must all be applied in light of vital national interests and transnational public policy. State contracts pose additional problems. The legislative, judicial, and arbitral practices in major jurisdictions are analyzed to give the reader a view of the major trends in international commercial arbitration. Practitioners in international commercial arbitration, international lawyers interested in dispute resolution, and students of international commercial law and the conflict of laws will find this book of special interest.

Excerpt

International commercial arbitration tribunals typically encounter choice of law problems at three levels. They may need to determine the laws applicable to the arbitration agreement, to the arbitral procedure, and to the substance of the dispute. In determining and applying the applicable laws, they also have to moderate the impact of contending national public policies on the arbitral process. This book analyzes the various possible solutions to the choice of law problems faced by international commercial arbitrators at these three levels. It focuses primarily on international arbitral practice and international conventions on arbitration. It also surveys judicial and legislative practices in selected jurisdictions, and examines existing juristic opinions on the issue.

Chapter One, the general introduction, examines the characteristics and theories of arbitration, and the role of conventions in international commercial arbitration. Chapter Two analyzes the laws relating to the arbitration agreement: the law applicable to the arbitration agreement, and the laws applicable to subjective and objective arbitrability. Chapter Three examines the law governing arbitral procedure, with a particular focus on the attempt to delocalize arbitral procedure. Chapter Four explores the law governing substantive issues, while Chapter Five considers particular issues in the law applicable to State contracts. Chapter Six deals with the role of mandatory rules of law in international commercial arbitration; it also examines the role of transnational public policy. Chapter Seven, the conclusion, is a reflection on the major trends in approaching choice of law issues in international commercial arbitration.

The perspective informing this book is eclectic; it stresses the dynamic interaction between the will of the arbitrating parties and the interest of various national legal systems in ensuring the fairness of the arbitral process and its respect for vital and appropriate national interests. This . . .

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