Law Applicable in International Commercial Arbitration

Abstract

In this article titled Law Applicable in International Commercial Arbitration different legal rules to be applied to the various elements of arbitration are discussed. The legal capacity to make an arbitration agreement the eligibility to arbitration in terms of subject matter and law to be applied to the form of the arbitration agreement are amongst those subjects that will be examined. The capacity is subject to the national law of parties and the eligibility to arbitration in terms of subject matter is subject to the law of country in which the award will be recognised and executed. Then the law to be applied to the base will be determined according to whether the parties made a choice of law. If the parties have not chosen a law the arbitrators can determine the applicable law according to various rules. These rules would be a conflict of law rules of lex arbitri or the proper law of contract. Lex mercatoria is the most applied one among these rules. The will of the parties to resolve according to the general principles of law or according to the usage and practice is sufficient for the arbitrators to apply lex mercatoria. Unlike the law to be applied to the base the law to be applied to the procedure is generally subject to the place of arbitration law. It would be determined by the arbitrators if the parties did not choose a law. The will of the parties may also play a role. In the case that the parties didn't choose the rule of law for the procedure the arbitrator or arbitrators can apply any proper law of contract including institutional rules of procedure like ICC.