Chapter 14 - Substantive Law - International Arbitration Law And Practice, Third Edition
Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.
Originally from International Arbitration Law and Practice, Third Edition
The choice of the applicable substantive law in international arbitration, when not made by the parties, is one of the most difficult issues the arbitrators have to decide on.1 Even the notion of the merits, to which the choice should be applied, is debated.2
A survey on the arbitrator’s task to determine the substantive law exists in the literature.3
Arbitration has overcome the battle for supremacy4 between national law and the autonomy of arbitration.
The alternative to the arbitrators’ application of a national law – apart from the rarity of their choosing the principles of international law and of the general principles of the law is the exclusion of any national law, which only seldom occurs.
However, although this solution is attractive, it has not been universally accepted. Several judgments and some authors have rejected it.
In the Andersen5 arbitration agreement it was held that
“[t]he arbitrator shall decide in accordance with the terms of the Agreement … the arbitrator should not be barred to apply the substantive law of any jurisdiction …”
For the sake of expedience, this study will assume that the dispute concerns a contractual relationship – which largely prevails in arbitral disputes – deliberately leaving aside, for simplicity, liability in tort.
CHAPTER 14: SUBSTANTIVE LAW
14.1 The Merits
Choice Made by the Parties
14.2 Choice Made by the Parties
Choice Made by the Arbitrator
14.3 Deviation from the Choice of the Parties
14.4 Choice Made by the Arbitrators
14.5 Trade Usages
14.6 The UNIDROIT Principles
14.7 International Principles of Law
14.8 Lex Mercatoria
The Tronc Commun
14.9 The Tronc Commun
Jura Novit Curia
14.10 Jura Novit Curia
14.11 The Shari’ah
Proof of Foreign Law
14.12 Proof of the Foreign Substantive Law
Interpretation of the Law
14.13 Interpretation of the Law
Abuse of Rights
14.14 Abuse of a Right