Originially from Conflict of Laws in International Commercial Arbitration

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I. INTRODUCTION 

Any overview of conflict of laws in international commercial arbitration is a delicate exercise in view of the breadth and complexity of the topic, but also as it overlaps with the contributions of others in this book. The approach of this chapter will, thus, be synthetic and also focus on some more recent developments regarding the interface between private international law and international commercial arbitration. 

The difficulties and complexities of the topic of private international law in international commercial arbitration (encompassing not only issues of applicable law but also of international jurisdiction and recognition and enforcement of judgments and arbitral awards) stem from the fact that arbitrators in international commercial cases are not only facing a conflict of laws question (which law applies) but also a conflict of conflicts of law question (which system of private international law applies). This is not an issue for domestic courts that apply their own system of conflict of laws; international commercial arbitrators sitting for instance in London, Paris, New York or Singapore, however, first will have to address the question as to whether they automatically can apply English, French, New York of Singaporean conflict of laws rules (as a domestic court at any such seat would do) or whether they may resort to conflict of laws rules different from those applying before domestic courts at their seat. 

This issue is further complicated by the fact that there is a potential interface between international commercial arbitration which does not live in a legal vacuum but may need support from domestic courts (for instance in the taking of evidence) or may be subject to some form of limited review, primarily in setting aside proceedings at the seat of the arbitration and in enforcement proceedings at any place where an arbitral award is to be recognized or enforced. In those circumstances, domestic courts may apply conflict rules different than those applied by the arbitrators as the systems they apply may differ.