governing law in connection with international arbitration “what was and was not said; what was...

Governing law in connection with international arbitration “What was and was not said; what was and was not promised; what

was and was not done.” Trade usages:

AA ICC Case No. 3380, AA ICC Case No. 1434 of 1975, AA ICC Case No. 3460 of 1980.

Transnational rules or the rules of lex mercatoria Transnational doctrine and legal vacuum Provisions regulating the procedures for determining applicable law

International dimension in arbitration and its influence on the International dimension in arbitration and its influence on the substantive law applicable to the merits of the disputesubstantive law applicable to the merits of the dispute

November 23, 2012 VilniusNovember 23, 2012 Vilnius

ALTERNATIVE DISPUTE RESOLUTION 2012ALTERNATIVE DISPUTE RESOLUTION 2012

Rules of permanent arbitral institutions allow the parties to freely choose not only the procedural provisions applicable to the proceedings, but also applicable substantive law.

Delocalization, anationality and denationalization Contractual autonomy and its elevation to the status of a specific

normative systém: Article 21 of the ICC Rules, Article 22(3) of the LCIA Rules, Article 22 of the SCC Rules.

Refusal of UNIDROIT Principles as concerns the interpretation of the law of national origin

Choice of law and attempts at transnationalization of the law Choice of law and attempts at transnationalization of the law applicable to the subject matter of the disputeapplicable to the subject matter of the dispute



“Conflict-of-laws autonomy” Article 28(2) of the UNCITRAL Model Law (cit.): “Failing any designation by the parties,

the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.”

Determination of applicable substantive law application of the cumulative method

all conflict-of-laws rules of all legal systems connected with the dispute

determination of applicable law pursuant to the general principles of the conflict of laws (private international law)

criteria as characteristic performance; standards contained in international treaties, such as the Rome Convention or the Hague Convention on the Law Applicable to International Sales of Goods (1955) in respect of purchase contracts, etc.

determination of applicable law directly (voie directe), i.e. without the help of the conflict-of-laws method

Application of the conflict-of-laws rules and the conflict-of-laws Application of the conflict-of-laws rules and the conflict-of-laws method by arbitral tribunalsmethod by arbitral tribunals



Irrespective of the method used by arbitrators to determine applicable law, they usually attempt to find the center of gravity of the facts of the case or the closest connection to the facts of the case to a particular legal system or another system of substantive rules.

Methods employed in the determination of the closest connection to the contractual relationship:

habitual residence or place of business of the party that provides characteristic performance, place of characteristic performance (this solution is not based on the habitual residence of the party providing

such performance, but on the place of performance).

Prevailing practice does not take into consideration the following connecting factors: place of negotiation or conclusion of the contract, language of the contract, nationality of the arbitrators, seat of arbitration, potential place of enforcement of the arbitral award.

The strategy of pleading invalidity of the contract escape clauses unacceptable conflict-of-laws solution ICC case no. 9473

Connecting factors used by arbitrators in international practiceConnecting factors used by arbitrators in international practice



Whereas subjective evaluation factors have only limited relevance for the determination of the conflict-of-laws connection in court proceedings, for instance under Rome Convetion or Rome I Regulation,

arbitrators often take these subjective aspects into serious consideration.

These aspects should never result in the definition of a hypothetical choice of law.

Is a contract the “main law” in contractual relationships? ILA Recommendation – International Law Association Resolution No

6/2008 of 21 August 2008 concerning the ILA Recommendations on ascertaining the contents of the applicable law in international commercial arbitration.

Subjective evaluation factors for the determination of applicable Subjective evaluation factors for the determination of applicable substantive lawsubstantive law



Broad possibilities to apply trade usages within the domain of international arbitration (for instance Article VII(1) of the European Convention on International Commercial Arbitration (1961) explicitly obliges the arbitrators to take account of trade usages).

The supranational or transnational law of international trade (the rules of ”lex mercatoria„)



A number of EU Member States consider arbitration proceedings to be sui generis, subject to highly internationalized practice (they especially emphasize that the issues of recognition and enforcement of foreign arbitral awards are sufficiently covered by the New York Convention (1958)).

Relationship between the decision making of arbitrators and the Court of Justice of the European Union (CJ EU / ECJ) May the arbitral tribunals or arbitrators address the CJ EU with a request to resolve the

issue of compatibility among the preliminary issues? (according to the Article 208 of the Treaty on the Functioning of the European Union (TFEU))

Case No. 102/81 in Nordsee Deutsche Hochseefischerei v. Reederei Mond Hochseefischerei et al An arbitrator or an arbitral tribunal, as a private entity, is not obliged or entitled to ask

the Court of Justice of the European Communities for a ruling on compatibility with European law.

Connection between EU law and arbitrationConnection between EU law and arbitration



Section 602 of the ZPO [Austria] An arbitral tribunal, an arbitrator authorized by the arbitral tribunal or a party with the

consent of the arbitral tribunal may propose that the court perform an act which does not fall within the jurisdiction of the arbitral tribunal. The supportive function of the court may also be exercised by the court requesting a foreign court or authority to perform such act…

ECJ Ruling C-126/97 (Eco Swiss China Time Ltd. v. Benetton International N.V.) Resolved by The Netherlands Institute of Arbitration (NAI) The arbitral panel ordered Benetton to pay compensation for losses Benetton requested annulment of the arbitral award in a court located in the territory

where the award was made (the Netherlands) and pleaded, inter alia, invalidity of the licensing agreement on grounds of a breach of Article 81 of the TEC.

The Court of Cassation referred to the ECJ which held that national courts seized with a motion to annul an arbitral award must allow the motion if the respective award is considered to be contrary to Article 81 of the TEC.

The ECJ therefore indirectly held that arbitrators in arbitral proceedings must also have regard to Community [EU] public policy.

Connection between EU law and arbitrationConnection between EU law and arbitration



Rome I Regulation - from the perspective of EU law, the most important contemporary instrument for the determination of law applicable to contractual obligations, i.e. the domain of arbitration.

Rome I Regulation lacks a provision analogous to Recital (8) of the Preamble to the Rome II Regulation, which reads as follows (cit.:) “This Regulation should apply irrespective of the nature of the court or tribunal seised.” This does not mean, however, that the Rome I Regulation should not apply in arbitration.

The absence of a declaration is only a natural manifestation of the fact that the formulations in the Rome I Regulation (not the concept of the Rome I Regulation) are a compromise.

Allianz SpA et Generali Assicurazioni Generali SpA v. West Tankers Inc. The ECJ ruled that the anti-suit injunctio under common law was incompatible with the

Brussels I Regulation and held that Community [EU] law must also be observed with respect to arbitration.

Arbitration and the Rome I Regulation from the perspective of EU Arbitration and the Rome I Regulation from the perspective of EU lawlaw



The possibility to resolve disputes ex aequo et bono must not exceed the framework of the principles enshrined in the legal system and the social structure in the seat of arbitration, i.e. it must not transgress the limits of public policy.

The parties may authorize the arbitrators to decide ex aequo et bono:

directly in the arbitration agreement (arbitration clause) or the parties may enter into such an agreement at any moment in the course of the arbitral

proceedings until the arbitrators issue their arbitral award.

Decision making ex aequo et bono applies only to substantive law. Decision making ex aequo et bono cannot be confused with

conciliation (for instance, mediation-type conciliation).

Exception to the application of substantive rules in arbitrationException to the application of substantive rules in arbitration



The practical approach to decision making ex aequo et bono in individual states exhibits major differences. There are two concepts:

the possibility to decide as amiable compositeur (this procedure is regulated under applicable lex arbitri only very rarely) or

decision making following the principles of equity (ex aequo et bono). However, arbitrators are obliged to resolve the “merits” of the dispute

“authoritatively”. The liability is assumed by the parties who can determine and influence, by

formulating the authorization granted to the arbitrators, the limits of the arbitrators’ decision making and thereby define the scope for the decision making following the principles of equity.

Decision making following the principles of equity therefore appears especially suitable in the case of

supplying technological devices or performing construction work.

Distinguishing decision making following the principles of equity Distinguishing decision making following the principles of equity from the from the amiable compositeur amiable compositeur procedureprocedure



governing law in connection with international arbitration “what was and was not said; what was...

Documents

substantive law applicable

conflict of laws rules

governing law

icc rules

transnational rules

uncitral model law

lcia rules

scc rules