The Confluence of Transnational Rules and National Directives as the Legal Framework of Transnational Arbitration

Abstract

The problem of determination of the legal framework of the arbitration (i.e., the set of rules and principles primarily applicable by an arbitral tribunal) is not the object of a unitary approach in many works devoted to the transnational arbitration. Frequently, this problem is diluted in the chapter on the law applicable to the arbitration agreement, the “law governing the procedure” and the law applicable to the merits of the dispute. The present essay follows a different approach.

The essay is organized around three axes: national regulation of arbitration, transnational regulation of arbitration and determination of the legal framework of the arbitration by the arbitrators. The point of view of the arbitral tribunal is the most important for this essay, since it is from this point of view the most complex and pressing issues on the determination of the legal framework of the arbitration arise.

Keywords: Transnational Arbitration, International Commercial Arbitration, Law Applicable to the Arbitration, Autonomy of the Parties in Arbitration, Mandatory rules in arbitration, Sources of Arbitration Law, State Control of Arbitration, State Regulation of Arbitration, Transnational Law of Arbitration

JEL Classification: K33, K41, K49