The Application of Substantive Law by International Arbitrators
ICC Dossiers Volume 11
The Application of Substantive Law by International Arbitrators examines issues which may arise when international arbitrators apply the rules of a national legal system.
During arbitral proceedings, parties expect arbitrators to apply the law they have chosen. Unlike a state judge or domestic arbitrator applying his own law however, international arbitrators must gather the necessary information about the contents of the applicable law. Furthermore, they are frequently faced with complex questions such as:
- How should the contents of the applicable law be proved by the parties?
- Are the arbitrators free to ascertain the applicable rules of law independently from the parties? ; ;
- Are arbitrators bound by judicial precedents established by the courts of the country the law of which applies?
- How should arbitrators deal with possible contradictions between the applicable law and the clauses agreed by the parties in their contract?
The right balance between these conflicting needs can only be found on a case-to-case basis, taking into account all the relevant circumstances. Dossier XI of the ICC Institute of World Business Law will give you a thorough picture of the practical issues raised when there is contradiction between the applicable law and the needs of international business.
The ICC Institute of World Business Law brings together the finest legal minds to strengthen links between international business practitioners and the legal profession. The Institute’s ‘Dossiers’ is a series that has gained international prestige. These Dossiers are the outcome of the Institute’s annual meetings, where experts from around the globe come together to discuss salient issues of international commercial law and arbitration.
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Foreword by Yves Derains
Introduction by Fabio Bortolotti
Chapter 1: Choice of The Applicable Law By the Parties by Bernard Audit
Chapter 2: The Raising Ex Officio of New Issues of Law A Challenge for Both Arbitrators and Courts by Antonias Dimolitsa
Chapter 3: ‘Proving’ the Contents of the Applicable Substantive Law(s) by Phillip Capper and Kristina Ljungström and Pauline Dépinay
Chapter 4: The Predictability Paradox Arbitrators and Applicable Law by William W. Park
Chapter 5: To What Extent Should Arbitrators Respect Domestic Case Law? The German Experience Regarding The Law On Standard Terms by Klaus Peter Berger
Chapter 6: Can Arbitrators Deal With Hierarchical Conflicts of Laws (e.g. Between a Law and the Constitution?) by Horacio A. Grigera Naón
Chapter 7: Resolving Conflicts between Contractual Clauses and Specific Rules of the Governing Law Strict Application of the Law or Flexible Approach by François Perret
Chapter 8: Substantive Applicable Law in International Arbitration: an Arbitrator’s Perspective by Matthieu de Boisséson
Chapter 9: The Interpretative Law-Making of Investment Tribunals How Identical Rules of Law May Lead to Opposite Results by Antonio Crivellaro
Chapter 10: How to Comply with the Applicable Law while Taking into Account the Expectations of the Parties and the Needs of International Commerce by Dr. Tarek F. Riad
Conclusion by Pierre Mayer