Extent of Procedural and Substantive Law in Arbitration and Litigation

Abstract

The article analyses the fundamental premises of the differentiation between substantive and procedural rules in private international law and arbitration. The author opens the paper with the general differentiation between substantive and procedural rules and the reasons for such differentiation. The opening paragraphs are followed by a chapter dealing with the fundamental issues and premises of the differentiation between substantive and procedural rules in private international law. At the same time, the author endeavours to define a general approach applicable to such differentiation. Attention is devoted primarily to the specifics of such differentiation in arbitration and to a comparison with litigation. The general comments are followed by an analysis of the legal nature of limitation of actions and offset (set-off), the classification of which is significantly different in civil law countries (especially from the continental European approach) and in common law countries. The author also deals with the conflict-of-laws premises and the consequences of their nature, as they are perceived differently under the individual legal systems. Analysing the nature of these legal institutions and their conflict-of-laws implications helps to outline the general theoretical premises and the practical consequences of differentiation between the nature of substantive and procedural rules.

Keywords: Arbitration, Litigation, Private International Law, conflict-of-laws, subtantive law, procedural law, choice-of-law, governing law, lex arbitri, lex loci arbitri, seat of arbitration, lex fori, qualification of legal institutes, EU Law

JEL Classification: K10, K11, K33, K40, K41, K49