Ascertaining the Content of the Applicable Law and Iura Novit Tribunus: Approaches in Commercial and Investment Arbitration - Dispute Resolution Journal - Vol. 70, No. 2

Author(s):

Christian P. Alberti

David M. Bigge

Page Count:

20 pages

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Published:

July, 2015

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While there is good guidance, scholarly and otherwise, on how
arbitral tribunals determine the content of the law applicable to the

dispute, uncertainty still exists on the use of what we will call iura

novit tribunus in the process. The traditional sources are of little or no

assistance for tribunals in finding an answer to the question as to how

the content of the applicable law is to be determined in the absence of

party pleading on a particular legal issue. In fact, party agreements

rarely, if ever, address this topic.1 Institutional arbitration rules do not

provide for guidance save one outlier,2 although some institutional

rules, while not expressly addressing the issue, provide tribunals with

wide discretion.3 Finally, national arbitration laws are mostly silent on

the issue, again, with a few exceptions.4 In any event, these

exceptions would only apply if the dispute were to be subject to those

particular jurisdictions.

However, this does not mean that the iura novit tribunus doctrine is

not being utilized by international tribunals in the context of

commercial and investment arbitration. Quite the contrary—arbitral

tribunals routinely determine the content of the law beyond the

parties’ pleadings, and reviewing courts routinely sanction this

practice. The following will address the question as to whether the

iura novit tribunus doctrine should be viewed as a power of the

tribunal or as a duty required of the tribunal, and will then focus on its

limitations suggested in recent case law. First, however, we will

address the impropriety of drawing on iura novit curia to determine

the scope of iura novit tribunus.

I. The Limited Utility of Relying on Domestic Court Practices

Most scholarly analyses of an arbitrator’s power to determine the

content of the applicable law outside of the parties’ pleadings start

with a review of iura novit curia in civil and common law domestic

courts. Indeed, national courts in the civil and common law regimes

deal with the question as to who shall ascertain and/or prove the

content of foreign law in international disputes differently, and the

background of the arbitrator and/or the reviewing court may affect

how the issue is addressed in arbitration.