scholarly journals Implementation of the Principle of Party Autonomy in Determining the Law Applicable to the Substance of Dispute in International Commercial Arbitration

2020 ◽  
pp. 6-21
Author(s):  
Volodymyr NAHNYBIDA
Keyword(s):  
Foreign Trade ◽  
Court Case ◽  
Business Practices ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
Applicable Law ◽  
Wide Range ◽  
The Law ◽  
Substantive Law

The article examines the essence and significance of the principle of party autonomy in international commercial arbitration when choosing the law applicable to the substance of the dispute. Terminological issues of the content of the concepts «essence of the dispute» and «applicable law» are considered separately. It is suggested that the substance of the dispute, to which the substantive law chosen by the parties or established by the arbitral tribunal applies, should cover a wide range of issues related to the rights and obligations of the parties arising from the conclusion, interpretation, enforcement, violation, termination or invalidity of the relevant foreign trade contract. It is summarized that the implementation of the party autonomy to choose the applicable substantive law by including in the foreign trade agreement the relevant provision is based on the normative permission enshrined in the lex fori, under whose jurisdiction arbitration takes place, and has its consequences in recognizing and enforcing arbitral awards. The author points out that the arbitrators have no obligation to apply the substantive law of the state of the place of arbitration to the substance of the dispute, which corresponds to the right of the parties to determine such a right independently, without imperative binding to a particular legal system. It is concluded that the delineation of the choices of substantive law before the parties is not regulated by law, leaving these issues to the discretion of the parties and the arbitration, for the analysis of which one should turn to science, arbitration and court case law. It is also necessary to consider options for establishing the substantive law applicable to the substance of the dispute: on the basis of direct or indirect choice made by the parties, or, in the absence or defect, the impossibility of realization of such a choice, the establishment of applicable law by an arbitration tribunal according to conflict of laws it considers appropriate. This logic is enshrined in all of the national arbitration laws which are analysed and is traced in the rules of arbitration institutions. The article argues that today the parties are free to choose not only national legal systems, but also non-national legal regulators (transnational principles of law, business practices, etc.), can subject various aspects of the dispute to different legal instruments with different degrees of binding power, and also to withdraw from them altogether and agree to settle the case in accordance with the equity principles or to give the arbitrator the mandate of an «amiable compositeur».

General: George W. Ball: Diplomicy for a Crowded World. Bodley Head, London, 1976, x, 356p., £5.

1978 ◽  
Vol 34 (2) ◽  
pp. 210-256
Keyword(s):  
Developing Countries ◽  
Foreign Trade ◽  
Foreign Exchange ◽  
International Economics ◽  
Developing Nations ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Development Plans ◽  
The Law

GENERAL: GEORGE W. BALL : Diplomacy for a Crowded World. GENERAL: MORDEVHAI E. KVEININ : International Economics: A Policy Approach. GENERAL: A.E. KARMALI : International Commercial Arbitration. N.M. Tripathi GENERAL: A. E. KARMALI and N. R. KANTAWALA : International Contracts: The Law and Practice of International Contracts. GENERAL: STEPHEN A. MARGLIN : Value and Price in the Labour-Surplus Economy. GENERAL: S. K. VERGHESE : Foreign Exchange and Financing of Foreign Trade. GENERAL: B. MAXWELL STAMPER : Population and planning in Developing Nations: A Review of Sixty Development Plans for the 1970s. GENERAL: JOHN CONNELL and MICHAEL LIPTON : Assesssing Village Labour Situations in Developing Countries.

Part IV Guide to Key Substantive Issues, 19 The Law Applicable in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Banifatemi Yas
Keyword(s):  
Specific Nature ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Primary Rule ◽  
The Law ◽  
Investment Treaty Arbitration

Investment treaty arbitration, being an arbitral process, in no way differs from international commercial arbitration in that the principle of party autonomy is the primary rule governing the arbitration, including as regards the law applicable to the substance of the dispute. When the applicable law has been chosen by the parties, the arbitrators have a duty to apply such law and nothing but such law. It is only in the absence of a choice by the parties that the arbitrators are entitled to exercise a degree of discretion in the determination of the applicable law. This chapter examines each of these situations in turn, before considering whether the specific nature of investment protection treaties has implications in terms of choice of law process.

scholarly journals The Validity, Effectiveness, and Enforceability of an Arbitration Agreement: Issues and Solutions

2021 ◽  
Vol 4 (4) ◽  
pp. 116-130
Author(s):  
Serhii Kravtsov ◽  
Nelli Golubeva
Keyword(s):  
Law Enforcement ◽  
Foreign Trade ◽  
Dispute Resolution ◽  
Trade Agreement ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Logical Conclusion ◽  
A Priority ◽  
The Law

The main reason for dispute in international commercial arbitration is the existence of an arbitration agreement concluded between the parties to a foreign trade agreement. The procedure of dispute resolution in international commercial arbitration will depend on the extent to which this arbitration agreement is concluded correctly in accordance with the norms of international and national law. Quite often, in the law enforcement activities of both national courts and arbitrations, there are questions about the validity, effectiveness, and enforceability of an arbitration agreement. In different countries, this issue is addressed ambiguously. In one case, national law takes precedence, and, accordingly, national courts are empowered to consider the validity, effectiveness, and enforceability of an arbitration agreement. In other cases, however, the autonomy of the arbitration agreement is a priority aspect of the consideration of any procedural issues by international commercial arbitration as the only and indisputable body authorised by the parties to the foreign trade agreement to consider a particular dispute. The article analyses doctrinal and legislative approaches to this issue, in which the authors come to the logical conclusion that national courts do not consider the validity, effectiveness, and enforceability of an arbitration agreement.

Applicability of the UNIDROIT Principles as the Law Governing the Merits of Arbitration in the Gulf Cooperation Council Countries

2020 ◽  
pp. 1-22
Author(s):  
Amin Dawwas ◽  
Tareq Kameel
Keyword(s):  
Gulf Cooperation Council ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
Rules Of Procedure ◽  
The Subject ◽  
The Law

Abstract According to the principle of party autonomy, the disputant parties may choose the law applicable to the merits of international commercial arbitration. In the absence of the parties’ choice, the arbitral tribunal shall determine this law. This article discusses the applicability of ‘rules of law’, namely the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles) to the merits of the dispute. It shows whether the UNIDROIT Principles can be selected by the disputant parties or the arbitral tribunal to govern the subject of the dispute under the Arbitration Laws of the Gulf Cooperation Council (GCC) Countries as well as the Constitution and the Arbitral Rules of Procedure of the GCC Commercial Arbitration Center (GCCCAC).

Determination of the Law Applicable to Foreign Economic Transactions under the Principle of the Closest Connection

10.12737/4828 ◽  
2014 ◽  
Vol 2 (7) ◽  
pp. 95-103
Author(s):  
Юлия Блинова ◽  
Yuliya Blinova
Keyword(s):  
Foreign Trade ◽  
Present Article ◽  
Russian Federation ◽  
Civil Code ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Applicable Law ◽  
Chamber Of Commerce ◽  
The Russian Federation

The present article focuses on questions of qualification of applicable law to foreign trade transactions on the basis of the principle of most significant connection if the applicable law has not been chosen by the parts. The meaning of the principle of most significant connection is made study of in national law, the meaning of the term “characteristic performance for the contract meaning” is defined by analyzing of different legal sources. Herewith attention is paid to the problems connected with the using of article 1211 of the Civil Code of the Russian Federation and precedents of the International Commercial Arbitration Court of the Chamber of Commerce and Industry of the Russian Federation are analyzed.

scholarly journals Party Autonomy and Regional Harmonization of Rules in International Commercial Arbitration

2006 ◽  
Vol 67 (4) ◽  
Author(s):  
Elizabeth Shackelford
Keyword(s):  
Twentieth Century ◽  
International Trade ◽  
World Wide ◽  
Commercial Law ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
Trade Law

In the last half of the twentieth century, the trend towards “world-wide harmonization of trade law” has increased steadily with the globalization of economies and the corresponding increase in transnational commerce. Throughout this period, efforts have emerged to unify and harmonize international commercial law in order to promote international trade. The two primary ways this was pursued during the twentieth century were unification of choice of-law rules and harmonization or unification of substantive rules.

9 The Enforcement of Arbitral Awards

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Public Order ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Way

This concluding chapter explores the enforcement of arbitral awards. There are two primary laws relevant to the recognition and enforcement of arbitral awards of international commercial arbitration in Russia: the Law on International Commercial Arbitration of 1993 and the Code of Commercial Court Procedure of 2002. The former has the basic provision on the recognition and enforcement of awards and the grounds for refusal, while the latter provides for the procedural aspects of recognition and enforcement of arbitral awards. It is an established principle of international commercial arbitration that in deciding whether enforcement of awards is allowed or not, courts are not entitled to review the case on its merits. However, Russian judges are not always aware of this fundamental rule, or do not comply with it. The chapter then looks at the grounds for the refusal of recognition and enforcement of arbitral awards and the way Russian courts interpret these grounds. Particularly important is the understanding of public order by Russian courts. Finally, the practice of ‘Russian Torpedo’ is discussed.

2 The 2015 Reform of Arbitration

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Russian Federation ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Russian Federation ◽  
Institutional Aspects ◽  
The Law

This chapter discusses the 2015 Arbitral Reform. The arbitral reform, which started in 2011, culminated in two sets of laws adopted by Parliament and signed by the president on 25 December 2015. The package comprised the Law on Arbitration of the Russian Federation and the Law on the amendments to the Laws in relation to the adoption of the above law. The latter included amendments to the Law on Commercial Court Procedure and the Law on International Commercial Arbitration. On 27 December 2018, the Law on Arbitration was further amended. The power to grant license to perform functions of permanent arbitral institutions was shifted to the Ministry of Justice. One of the fundamental issues which were contested in the process of the reform was whether the existing regime of segregation of international and domestic arbitration should be abandoned altogether or should be maintained. With the strong opposition from experts of international commercial arbitration supported by the Codification Commission and the President’s Administration, the system of two separate laws, that is, the Law on Arbitration and the Law on International Commercial Arbitration, was maintained. However, organisational/institutional aspects of arbitration, including international arbitration, are now regulated by the Law on Arbitration.

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