Centre 2021 (online): Applicable Law Issues in International Arbitration

From 16 August until 3 September 2021 the (online) Centre for Studies and Research (Centre d’Etude et de recherché) will take place at the Hague Academy of International Law.

Applicable Law Issues in International Arbitration (Centre for Studies and Research) (2021) = Questions de droit applicable dans l'arbitrage international (Centre d’Etude et de recherché) (2021).

Directors of Research:
Prof. Giuditta Cordero-Moss (University of Oslo)
Prof. Diego Fernández Arroyo (Sciences Po, Paris)

International arbitration has long been the most successful method for settling all kinds of international commercial disputes, and still is – notwithstanding the surrounding criticism – the leading method for settling disputes between foreign investors and the host state. One of the characteristics of international arbitration is that it to a large extent relies on an international or transnational legal framework.

The effects of arbitration agreements and of arbitral awards, as well as the role of the courts regarding arbitration agreements and awards, are regulated in international conventions such as the New York or the ICSID Conventions. Furthermore, although there is room for specificities of national law, commercial arbitration acts are largely harmonised especially through the impact of the UNCITRAL Model Law. Similarly, even if arbitral institutions try to distinguish one from each other by providing for some specific tools, the essential content of arbitration rules does not vary. It can be said, consequently, that the transnational framework of arbitration is intended to create to the extent possible an autonomous system of dispute resolution, which can be applied in a uniform way irrespective of the country in which the proceedings take place or the award is sought enforced. The procedural autonomy of arbitration may also have an impact on how arbitral tribunals relate to the substance of the dispute.

As arbitral awards are final and binding, and domestic courts and ICSID annulment committees do not have the power to review them in the merits, arbitral tribunals enjoy a considerable flexibility in selecting and applying the rules of law applicable to the dispute, even though they are constrained to respect the will of the parties. Legal literature has strongly emphasized that this flexibility creates an expectation of delocalization: both from the procedural and from the substantive point of view, arbitration is described as a method for settling disputes that strives for uniformity on a transnational level and should not be subject to national laws. The autonomy and flexibility of arbitration, however, are not absolute. The international instruments that regulate arbitration either make, in some contexts, reference to national law or call for the application of (general or concrete) international law. Also, they do not cover all aspects of arbitration, thus leaving room for national regulation. Additionally, the restricted role that courts and ICSID ad hoc committees have in arbitration does not completely exclude that national law may have an impact. While court and committee control is not a review in the merits, application of the parameters for validity or enforceability of an award, even where these parameters are harmonised, may depend on national regulation.

Importantly, the definition of what disputes are arbitrable is left to national law. While the scope of arbitrability has been significantly expanded starting from the last two decades of the last century, there are signs now that it may be restricting. The scope of arbitrability may be looked upon as a measure of the trust that the legal system has in arbitration. From another perspective, it may represent the way in which States approach the settlement of international commercial disputes: intending to keep an exclusive power by means of the exclusion of private deciders,or adopting the role of controllers of the regularity of arbitration. As far as investment arbitration is specifically concerned, it is well known that States’ attitudes are diverse and may change from time to time. In both cases, States’ policy choices may have an impact on applicable law issues.

A few relevant subject headings in Peace Palace catalogue:

International arbitration     International commercial arbitration    Investment arbitration

Arbitration clause (=arbitration agreement)      Ratione materiae (=arbitrability, subject matter)

Party autonomy    Mandatory rules    Lois de police (=procedural public policy)

Res iudicata    Provisional measures (interim measures)    Emergency arbitration

Private international law    Choice of law    Conflict of laws

A combination of mentioned subject headings in the Advanced Search will result in more specific hits.

Special attention deserves the Kluwer Arbitration [PPL info] database, in order to find relevant books and recent articles in e-journals on international arbitration.

The Peace Palace Library wishes both professors and participants a successful and productive Centre d'étude.

Founded in 1923, the Hague Academy of International Law has for decades served as a global centre for research about and teaching of public and private international law. The Academy conducts a three-week summer Centre for Research aimed at in-depth research by younger academics on a selected contemporary issue under the direction of two senior scholars. The publications of the Centre for Studies and Research focus on some of the most topical and complex issues in international relations. Identified problems are studied from a broad global perspective by researchers from all over the world, combining, where appropriate, expertise in public and private international law.

Series on The Centre for Studies and Research in International Law and International Relations. Publications of the Hague Academy of International Law.