'The Iceberg Beneath the Water': The Hidden Discrimination Against the Lex Mercatoria in Chinese Arbitration
Journal of Private International Law, Vol. 7, No. 2, pp. 341-359, 2011
15 Pages Posted: 17 Aug 2011
Date Written: August 17, 2011
That the lex mercatoria can be applied absent parties’ agreement in international arbitration has been established over time. Yet the extent to which it can be applied vary depending on the arbitrators’ choice-of-law power granted by the applicable arbitration laws and rules. At the international level, four major patterns of the arbitrators’ choice-of-law powers are adopted. But the 'Chinese pattern' is different because the arbitrators under Chinese law are subject to heavier restrictions in making choice-of-law decisions in favor of the lex mercatoria. Though Chinese law contains no de jure discrimination against the lex mercatoria, these restrictions amount to a de facto impediment for the application of the lex mercatoria in Chinese arbitration, which could seriously hurt the competitiveness of Chinese arbitration in the long run. However, given the current sociopolitical situation in China, it remains a tough task to remove such discrimination.
Keywords: Lex Mercatoria, discrimination, arbitration, China
JEL Classification: K3
Suggested Citation: Suggested Citation