Law Applicable to International Commercial Arbitration
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March 11, 2022
Although often less complex than choice of law issues in domestic courts, the choice of law applicable in international commercial arbitration may sometimes not be as simple as one might hope. The simplest way to avoid this complexity is to explicitly state that all laws relating to the matter, the arbitration agreement and arbitration are identical in the parties` contract and that no conflict-of-laws rules apply. The types of law applied to arbitration include international treaties and national laws, both procedural and substantive, as well as the rules of procedure of the respective arbitration institution. Previous arbitral awards have the power of persuasion, but are not binding. Scientific commentary or “teachings” can also be applied. One of the best-known publications, the International Council for Commercial Arbitration: Commercial Arbitration Yearbook, is available both in print and online by subscription via Kluwer Arbitration. It contains information on arbitral awards of the International Chamber of Commerce and several other arbitration institutions, as well as on ad hoc arbitral awards made under the UNCITRAL Rules. The International Arbitration Yearbook is a relatively new publication that addresses the latest trends in international commercial arbitration, as well as sports controversies and investor-state disputes. The AAA Yearbook on Arbitration and the Law, published by the American Arbitration Association, focuses primarily on U.S. arbitration and domestic laws, but also covers international arbitration issues.
International Arbitration and Mediation: A Practical Guide by Michael McIlwrath and John Savage provides detailed and simple discussions on each step of the arbitration process, as well as the mechanisms for negotiating and drafting an international dispute settlement agreement. The focus is on early case assessment and cost analysis, as well as alternatives to arbitration such as mediation and arb-med. The book contains model dispute settlement clauses and arbitration documents, as well as a comprehensive bibliography of general and specialized arbitration treaties and documents, as well as a list of websites and other online resources on arbitration. International Arbitration and Mediation: A practical guide is available in print and online through Kluwer Arbitration. Unlike court proceedings, commercial arbitration is generally confidential. Decisions, arbitral awards and other documents related to arbitration are generally not published, and there is no central database or publication for arbitration research. Continuing our series of articles on the practical aspects of international arbitration, we address the issue of applicable law. Great attention and weight are given to the procedural aspects of international arbitration. What is often overlooked is the complex interaction between the myriad of potentially applicable laws. In practice, the parties generally do not specify the law applicable to their arbitration agreement. This law governs the existence, validity and interpretation of the arbitration agreement itself (see also our recommendations for the elaboration of an arbitration clause in 2021). Mealey`s International Arbitration Report, available in print and online through LexisNexis, is a monthly newsletter covering arbitration and related disputes before international and national courts around the world.
The report contains articles, news, case summaries, lists of lawyers and full-text court documents related to international arbitration. Peter Ashford`s Handbook of International Commercial Arbitration, 2nd ed., provides an up-to-date discussion of each stage of arbitration and is accompanied by a CD-ROM containing sample submissions, correspondence and other documents to assist practitioners in arbitration. Directories dealing with international law in general may also contain information on international arbitration. These can be found in print form or in a variety of commercial databases, including Lexis Advance, WestlawNext, and HeinOnline. A thorough understanding of the above potentially applicable laws and how they interact with each other is essential to ensure smooth arbitration and binding arbitration. Each country has its own lex arbitri, which is part of its domestic law and can be incorporated into its Code of Civil Procedure, as is the case, for example, in France (French arbitration) and Germany (German arbitration), or as an “autonomous” law, as is the English Arbitration Act 1996 (see also our commentary on the English Arbitration Act 1996 here). A complete list of most national arbitration laws can be found here. The American Law Institute is currently drafting the Reformatement of the Law Third: The U.S. Law of International Commercial Arbitration. The project will reformulate U.S. law of international commercial arbitration and is expected to include arbitration conventions, judicial conduct and judicial role in international arbitration in the United States, arbitral awards, recourse and enforcement of international arbitral awards in the United States, judicial role in international arbitration proceedings abroad, enforcement of international arbitrations. Foreign arbitral awards, the exclusionary effect of international arbitral awards and ICSID Arbitration.
The preliminary reprocessing projects are available on the ALI website. However, more and more arbitral awards can be found in commercial databases. Kluwer Arbitration and Juris`s Arbitration Law Online are two specialized databases that offer collections of texts and summaries of arbitral awards. WestlawNext and Lexis Advance both have arbitration sections that include domestic and international arbitral awards. In WestlawNext, this section can be accessed via the Arbitration Documents link on the main page, for which Lexis Advance asks you to search for current topics for international law, dispute resolution, and arbitration and mediation. Both platforms offer an online tutorial to help users retrieve arbitration documents. HeinOnline`s database of foreign and international law resources also contains arbitral awards as well as related secondary sources and commentaries. Reports of International Arbitral Awards (RIAA), available in print form, in HeinOnline and on the United Nations website, publish arbitration decisions; However, it is limited to disputes between Contracting States and does not take into account disputes involving individuals or institutions. Getting the Deal Through, available in print, by subscription online or through Bloomberg Law, provides arbitration advice in nearly fifty different countries written by local practitioners.
Each chapter contains a brief list of national legislation concerning domestic and foreign arbitration and the recognition and enforcement of arbitral awards. Directories are annual publications designed to provide the reader with updates to the law that have taken place over the past year. Arbitration directories may contain articles on new developments in international arbitration law, case notes or texts of arbitral awards, new laws and treaties, and other information. 84 States and a total of 117 jurisdictions have based their lex arbitri on the 1985 UNCITRAL Model Law on International Commercial Arbitration and its revised 2006 version (see the statute of the UNCITRAL Model Law here). This has led to a welcome level of uniformity between the different national lex arbitri, which increases legal certainty and encourages the use of international arbitration by commercial parties to resolve their disputes. .
