Paying Attention to Choice of Law in International Commercial Arbitration - or - Why the Conflict of Laws Always Matters

Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson (eds), Commercial Issues in Private International Law - A Common Law Perspective (Hart Publishing, 2019)

Posted: 16 Jul 2019

See all articles by Benjamin Hayward

Benjamin Hayward

Monash University - Department of Business Law & Taxation

Date Written: 2019

Abstract

International commercial arbitration is an alternative to State court litigation, though still constitutes formal dispute resolution - where arbitrators apply the law to resolve a dispute. Arbitration has an interesting intersection with private international law - one aspect of this intersection involving identification of the substantive law governing the merits. Parties will often choose this law, though sometimes they will not, leaving it to the arbitrators to identify the governing substantive law.

Nevertheless, even where parties do select a governing substantive law, the arbitrators' own identification of the law may still be necessary. This book chapter identifies and analyses, with reference to case law examples, nine categories of case where a purported party choice of law will not obviate the need for arbitrators to themselves identify the governing law for one, more, or all issues in dispute.

Suggested Citation

Hayward, Benjamin, Paying Attention to Choice of Law in International Commercial Arbitration - or - Why the Conflict of Laws Always Matters (2019). Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson (eds), Commercial Issues in Private International Law - A Common Law Perspective (Hart Publishing, 2019), Available at SSRN: https://ssrn.com/abstract=3420558

Benjamin Hayward (Contact Author)

Monash University - Department of Business Law & Taxation ( email )

Caulfield Campus
Sir John Monash Drive
Caulfield East, Victoria 3084
Australia

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