Choice of law challenge in international commercial and investment arbitration

Choice of law challenge in international commercial and investment arbitration

Авторы: Попов Евгений Васильевич ЧИТАТЬ
Popov E.V. Choice of law challenge in international commercial and investment arbitration / E.V.Popov // Globalisation and Private International Law. Proceedings of the 2017 annual symposium of the International Association of Legal Science (IALS) hosted by the Russian Academy of Legal Sciences (RALS). Moscow, 2019. — P. 97-112.

The principle of iura novit tribunus (iura novit curia in the context of the state/public courts) is well known by the arbitrators within the choice-of-law paradigm and is frequently referred to when resolving international commercial and investment disputes. Both common law and continental European countries have documented considerable scholarly attempts to understand the nature of this principle and define the boundaries of its application within arbitral proceedings when resolving international commercial and investment disputes. The most common scenario for application of this principle is when the arbitrators have to choose the governing law if the parties to the dispute failed to reach an agreement on the choice of law in the contract or post the commencement of a dispute, or the parties’ positions vis-à-vis the applicable law drastically differ. It would be fair to say that there is no generally accepted guidance both in the contract law setting and in arbitral jurisprudence as reflected in the arbitration rules  as to how the arbitrators are to choose the applicable law other than to refer to:


(i) the concept of lex connectionis fermitatis, the law of the real connection which represents the closest link of the contract with the corresponding domestic legal system;


(ii) conflict of laws rules under respective private international law regulations in the country concerned;


(iii) taking into account the terms and conditions of the contract;


(iv) trade customs and practices; or


(v) reliance on public international law sources, to the extent that these are admissible and applicable in the context of a specific dispute, mainly in the investor-state arbitration universe.



Ключевые слова: choice of law, commercial arbitration, investment arbitration, dispute settlement.
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