The Law Applicable to the Arbitration Agreement and the Arbitrability of a Dispute

Yearbook of International Arbitration, M. Roth and M. Giestlinger (eds.), Intersentia / DIKE / NWV, Antwerpen-Zurich-Vienna-Graz, 2013, pp.27-57

31 Pages Posted: 28 May 2013

Date Written: May 7, 2013

Abstract

Generally speaking, each individual jurisdiction has adopted its own approach concerning the rules on the determination of the governing law applicable in proceedings in international matters. In the international practice, arbitral panels usually distinguish four relatively autonomous areas associated with the determination of the applicable law, including the possibility of choosing the lex arbitri, as the areas that come into consideration in connection with arbitration. They include: (1) determination (choice) of the substantive law applicable to the merits of the dispute, (2) determination (choice) of the procedural law and procedural rules (standards) applicable to the procedure, (3) determination (choice) of the conflict-of-laws rules regulating the determination of the applicable law, (both the substantive law applicable to the merits of the dispute and the procedural law applicable to the procedural issues), and (4) determination (choice) of the law applicable to the assessment of validity and effects of the arbitration agreement.

The determination of the law applicable to the arbitration agreement is by no means an end in itself. If we accept the premise that the validity of the arbitration agreement is principally governed by substantive rules, the scope of the law applicable to the arbitration agreement is relatively broad. It also encompasses, for instance, the authorization of an agent to enter into the arbitration agreement, etc. The specific features consisted in various approaches to the law applicable to the arbitration agreement, as well as to the proceedings and to the law applicable to the assessment of the merits of the dispute in their mutual interaction, are especially (without limitation) the result of the fact that the principle stipulating that the applicable procedural law is the lex fori usually does not apply in arbitration. Similarly, it is possible to enumerate a number of qualifications, both conceptual and specifically relating to arbitration.

Keywords: arbitration agreement, applicable law, conflict-of-laws, lex arbitri, arbitrability, substantive law, procedural law, customary law, public policy (order public), New York Convention, European Convention on International Commercial Arbitration, international law, EU law

JEL Classification: K10, K12, K19, K30, K33, K39, K40, K41, K49

Suggested Citation

Belohlavek, Alexander J., The Law Applicable to the Arbitration Agreement and the Arbitrability of a Dispute (May 7, 2013). Yearbook of International Arbitration, M. Roth and M. Giestlinger (eds.), Intersentia / DIKE / NWV, Antwerpen-Zurich-Vienna-Graz, 2013, pp.27-57. Available at SSRN: https://ssrn.com/abstract=2270670

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