Choice of Law in International Commercial Arbitration

By Okezie Chukwumerije | Go to book overview

CHAPTER SEVEN
Conclusion

INTRODUCTION

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.


PARTY AUTONOMY

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

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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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