Putting the Principle of Severability in the Dock: An Analysis in the Context of Choice of Law for Arbitration and Jurisdiction Agreements

2021 ◽  
pp. 139-174
Author(s):  
Koji Takahashi
Keyword(s):  
Choice Of Law ◽  
The Matrix ◽  
Substantive Law ◽  
Governing Law

This essay proposes a principled approach to determining the governing law of arbitration agreements and jurisdiction agreements. Acknowledging the usefulness of the principle of severability in the sphere of substantive law, the author opposes the extension of the principle to the sphere of choice of law analysis to treat such agreements as a distinct contract severed from the matrix contract. The author, however, accepts that such agreements are, like any other terms in the same matrix contract, subject to the choice of law technique for splitting up terms within a single contract known as dépeçage, while suggesting that the possibility of involuntary dépeçage should be circumscribed. It is noted that splitting up terms within a contract by means of dépeçage is not the same as treating a term as a distinct contract in terms of choice of law methodology. This essay also examines English cases and seeks to reconcile the proposed approach with the text of existing instruments.

CONTRACTS, ILLEGALITY AND COMITY: RALLI BROS REVISITED

2020 ◽  
Vol 79 (1) ◽  
pp. 64-90
Author(s):  
William Day
Keyword(s):  
Public Policy ◽  
Policy Rule ◽  
Choice Of Law ◽  
Considerable Uncertainty ◽  
Rome Convention ◽  
Governing Law ◽  
Rome I

AbstractThere has always been considerable uncertainty about the nature and scope of the rule by which contractual performance is excused if illegal in the place of performance, even though performance would not be illegal by the contract's governing law. This article revisits the so-called “Ralli Bros rule” and looks at how the scope of the rule has been developed and its nature misunderstood. It argues that the rule is neither a choice of law rule nor part of the rules discharging a contract for frustration but is instead a public policy rule favouring judicial abstention for reasons of comity. This has implications for how the rule interacts with the choice of law rules for contracts under the Rome Convention and the Rome I Regulation.

Part III International Arbitration Agreements: Issues and Perspectives, 8 The Dangers of Neglect: Governing Law of Arbitration Agreements

2016 ◽  
Author(s):  
Kaplan Neil ◽  
Boltenko Olga
Keyword(s):  
International Arbitration ◽  
Choice Of Law ◽  
The Subject ◽  
The Law ◽  
Governing Law

This chapter argues that the issue of the law applicable to arbitration agreements has been neglected to such a tremendous extent that even the major arbitral institutions fail to include the choice of law provisions in their model arbitration clauses. As a result of that oversight, very rarely do the parties include the choice of law provision in their arbitration agreements, and many arbitrations degenerate into unnecessary debates as to which law applies. The time has come for parties to select explicitly the law that will govern their arbitration agreement, and perhaps more importantly, for the institutions to recommend that the parties select the law to govern their arbitration agreements. The various approaches offered by arbitration practitioners on the subject are discussed.

4 Governing Law of Sovereign Bonds

2018 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
Sovereign Debt ◽  
Choice Of Law ◽  
Sovereign Bonds ◽  
Domestic Debt ◽  
The Law ◽  
Governing Law

Chapter 4 examines the law applicable to sovereign domestic bonds in the absence of a choice of law provision. It is commonly believed that the domestic debt is necessarily governed by the law of the sovereign. The chapter challenges that premise by arguing that the law of the creditor should apply instead on the ground that the creditor is the party providing the characteristic performance. The chapter examines the possibility of escaping the governing law in favour of, among others, the law of the sovereign debtor. Lastly, the chapter examines the applicability of mandatory provisions in sovereign debt litigation.

Governing Law of Sovereign Bonds

2018 ◽  
Author(s):  
Hayk Kupelyants
Keyword(s):  
Sovereign Debt ◽  
Choice Of Law ◽  
Sovereign Bonds ◽  
Domestic Debt ◽  
The Law ◽  
Governing Law

Chapter 4 examines the law applicable to sovereign domestic bonds in the absence of a choice of law provision. It is commonly believed that the domestic debt is necessarily governed by the law of the sovereign. The chapter challenges that premise by arguing that the law of the creditor should apply instead on the ground that the creditor is the party providing the characteristic performance. The chapter examines the possibility of escaping the governing law in favour of, among others, the law of the sovereign debtor. Lastly, the chapter examines the applicability of mandatory provisions in sovereign debt litigation.

A re-examination of the conflict rules governing the validity of international contracts

2020 ◽  
Vol 7 (2) ◽  
pp. 41-59
Author(s):  
Prince Obiri-Korang
Keyword(s):  
International Law ◽  
Common Law ◽  
Careful Examination ◽  
Private International Law ◽  
Choice Of Law ◽  
Judicial Decisions ◽  
Legitimate Interest ◽  
The Law ◽  
Governing Law

Generally, under choice of law, the issue of uncertainty associated with the determination of the governing law of international contracts is quite clear. The level of this uncertainty, however, increases when dealing with questions about which law governs the validity of such contracts. Like other areas of private international law, matters concerning validity present several unique challenges both in theory and in practice, making it the most complicated topic in private international law literature. In fact, the uncertainty in this area has led to a situation where different rules are applied by different states, without taking into consideration the link that should exist between the state whose law becomes applicable and the function that the law is expected to serve – determining the validity of a contract. This article attempts to contribute to existing literature on choice of law questions regarding the validity of international contracts and also provides solutions, based on the underlying principles of private international law of contract that effectively address the uncertainty in this area of law. The article submits that the law that governs the validity of an international contract must, at all times, be one that has a legitimate interest in matters concerning the legality or otherwise of such contracts. In this regard, the article strongly opposes the theory that the parties’ intention determines the law that governs the validity of their contract. After a careful examination of literature and landmark judicial decisions in both civil law and common law jurisdictions, the article concludes that the lex loci solutionis is the appropriate law to determine matters relating to the validity of international contracts.

Of principle, practicality, and precedents: the presumption of the arbitration agreement’s governing law

2020 ◽  
Author(s):  
Aaron Yoong
Keyword(s):  
Insurance Company ◽  
Court Of Appeals ◽  
The Matrix ◽  
Governing Law

Abstract The issue of determining the appropriate law governing an arbitration agreement is one that has long vexed the courts in many jurisdictions. Most recently, both the English and Singapore Court of Appeals have waded into the fray, contributing contrary opinions in their respective decisions of Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” and BNA v BNB. This article examines these decisions and argues that there should be a presumption that the governing law of the arbitration agreement follows the matrix contract within which it is situated.

The International Investment Arbitrator’s Duty to Apply the Law

2018 ◽  
Vol 17 (1) ◽  
pp. 160-177
Author(s):  
Joshua Karton
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Settlement System ◽  
Choice Of Law ◽  
Primary Constraint ◽  
Investment Treaty ◽  
The Law ◽  
Investment Treaties ◽  
Dispute Settlement System ◽  
Governing Law

Abstract This article explores the sources, nature, and implications of an arbitrator’s duty to decide according to the governing law in investor-state arbitrations. It advances a contractarian conception of arbitral authority in investor-state arbitration, whereby the agreement of the states parties to the investment treaty is the source of both the arbitrator’s power to make decisions and the primary constraint on that power: the duty to apply the law. It argues that the choice of law provisions in investment treaties have a constitutional character for arbitral tribunals, such that a failure to apply the chosen law constitutes an excess of the tribunal’s powers which, if manifest, justifies annulment or non-enforcement of the award. The article concludes by considering the implications of this contractarian theory of arbitral powers and duties for arbitrators, disputing parties, and states seeking to reassert control over the investor-state dispute settlement system.

III Choice-of-Law Question, Three Major Developments, and the Need for Harmonization

2020 ◽  
Author(s):  
Geva Benjamin ◽  
Peari Sagi
Keyword(s):  
Significant Relationship ◽  
Private Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Second Development ◽  
The Third ◽  
Common Thread ◽  
The Subject ◽  
Substantive Law

This chapter focuses on the question of choice-of-law and delineates its common thread within contemporary private law choice-of-law rules. In particular, it demonstrates that despite the variety of names and titles, one can point to three cornerstone developments within the contemporary choice-of-law doctrine, which all can be traced to different degrees of divergence within the various systems. The first development is a relaxation within the classical classification of the subject according to the presence of the so-called ‘foreign element’ in the factual matrix of the case. The second development is the advances of the so-called ‘party autonomy’ principle according to which the parties can agree on the identity of the applied law. Finally, the third development is the advances of the so-called ‘most significant relationship’ (MSR) principle according to which courts are required to assess the factual situation of a case as a whole and to evaluate the significance of the various factors relative to the degree of their connectedness to the particular liability event and the litigating parties. Given the failure of the systems to agree on unification of the substantive law, the chapter then highlights the need for harmonization of choice-of-law relating to negotiable instruments.

Procedure

2019 ◽  
pp. 225-238
Author(s):  
V.C. Govindaraj
Keyword(s):  
The Other ◽  
Remedial Measures ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Other Hand ◽  
Foreign Law ◽  
The Law ◽  
Substantive Law

This chapter begins with a brief discussion of the jurisprudential distinction between substance and procedure. Substance relates to rights and obligations of the parties to a dispute, whereas procedure is the means employed to determine such rights and obligations. Matters of substantive law are governed by the lex causae (that is, the law that governs the cause of action), the law found applicable under the concerned country’s rules for the choice of law. Matters of procedure, on the other hand, are governed by the lex fori (that is, the law of the forum), the law of country where the action is brought. The chapter covers procedural matters of interlocutory character; remedial measures for enforcing a right; conflict of laws and the law of limitations; matters of enforcement; underlying norms and principles of stay of proceedings; and proof of foreign law.

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