Law applicable to merits of the arbitration dispute (an overview of the English, Swiss and French arbitration laws)

Abstract

Due to the plethora of international elements of a contract to arbitrate, i.e. nationalities of the parties, nature of the transaction and the legal background of the arbitrator, questions of law applicable to the substance of the dispute are always at stake. In the course of arbitral proceedings, issues of law applicable to the arbitral dispute are raised after a concise examination of the law applicable to the arbitration agreement, namely whether the parties have consented to arbitrate the subject-matter in issue and the law applicable to the arbitral procedure. The present study draws upon the principle of party autonomy, in both theoretical and practical aspects in the context of the freedom of contract principle. It further considers the restrictive role of mandatory rules upon the above principle. Light shall also be shed on the current trends of international mandatory rules and public policy as discussed in ICC awards by experienced arbitrators and solely developed within the ambit of international commercial arbitration. Furthermore, a consistent examination of possible choices of law and rules of law such as a-national rules i.e. lex mercatoria and general trade usages will sketch the existing variety of possibilities in choice of law both on the parties and lawyers leading arbitrations. The last Section will independently examine an absence of choice of law, and several doctrines which envisaged the stance of the three distinguished European arbitral systems: English, Swiss and French.