Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

It is a trite observation that arbitration is a hybrid institution. On the one hand, its origin is contractually based on an agreement between the parties to appoint a third party to resolve any potential dispute between them. On the other hand, the law endows the arbitrator with jurisdictional powers to give his decision the force of law and the attribute of enforceability before the courts, both domestically and internationally.

Most often when discussing the role of law in arbitration, commentators have focused their attention on the jurisdictional aspect of arbitration where arbitration agreements, procedures and awards enter the domain of the courts. Indeed, the leading authorities on the English law of arbitration did not hesitate to define their subject as “the law of private arbitration is concerned with the relationship between the courts and the arbitral process.”2 The symposium for which this paper was originally prepared was entitled “Arbitration and National Courts: Conflict and Cooperation,”3 with one of the sessions devoted to “The Role of Law in International Arbitration.” The role of law will be determined in the first instance and, most frequently, in the last instance, by the arbitrator and depends on how he or she defines the arbitral mission and how he or she envisages the role of law in