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Vol 23 No 6 June/July 2018

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Cover of Drafting Commercial Agreements

Drafting Commercial Agreements

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Choice of Forum and Laws in International Commercial Arbitration

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ISBN13: 9789041104922
ISBN: 9041104925
Published: July 1999
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Paperback
Price: Out of print

Out Of Print

International commercial arbitration raises issues other than the choice of the law applicable to the principal contract. Autonomy may have a wider meaning, extending beyond the choice of applicable law to the choice of arbitration itself, and of the place or places where it is to be conducted. Nor is it altogether clear what the forum is, if any.

This paper raises the fundamental question of what gives the arbitrator his or her competence; the will of the parties or the law of the seat of arbitration which the parties may, or may not, have chosen. An answer has also been suggested to the questions of which choice of law rules, if any, should be applied by the arbitrators, to what extent arbitrators will apply mandatory rules (regles d'application immediate), as well as which law governs the procedural aspects and whether it has to be the procedural law of a national system. The new English Arbitration Act 1996 has also been taken into account.

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Arbitration and Dispute Resolution
The autonomy of the parties; does arbitration have a forum?; the arbitration clause as an independent source of the arbitrator's authority; the choice of the arbitral seat; choice of law as regards the arbitration agreement; the scope of the law governing the arbitration agreement; the substantive law to be applied by the tribunal; the law governing procedure; mandatory rules.