The objective of this book was to examine the choice of law problems faced by international commercial arbitrators and to analyze the solutions adopted by arbitrators, international conventions, national legal systems, and jurists in tackling these problems. The purpose of this concluding chapter is not to recapitulate all the conclusions that were made in the body of the book. Rather this chapter is a reflection on the major trends in choice of law issues in international commercial arbitrations.
One common denominator in arbitral and national legislative practices relating to choice of law problems in arbitration is the preeminent role played by the will of the parties. In deciding the applicable substantive and procedural law to an arbitration, arbitral tribunals, international conventions, and national laws accord a primary place to the will of the parties.
The high place accorded to the will of the parties is in large part a reflection of the fact that arbitration is a private system of dispute resolution. The system is organized to effectuate the parties' desire for a private and self-designed process of dispute resolution. Parties who contract to arbitrate do so on the understanding that they would design the proceedings to suit their particular needs. Arbitrators therefore respect the will of the parties in approaching choice of law issues.
There are, however, three instances in which the will of the parties does not predominate. First, when there is a dispute as to the very existence of the arbitration agreement (for example, where it is argued that one of the parties lacked the capacity to enter into an arbitration agreement), the will of the parties cannot be a useful guide. This is because issues such as