During an arbitration dispute a number of choice-of-law issues may arise. (See Heuman, Arbitration Law of Sweden, p. 680 et seq). The following issues will be discussed in this presentation.
● Applicable law to the agreement to arbitrate.
● Applicable law to issues of arbitrability.
● Applicable law on the merits.
● Ordre public issues with a focus on competition law.
II. ISSUES TO BE DISCUSSED
Applicable Law to the Agreement to Arbitrate
The doctrine of separability provides that the arbitration agreement constitutes a separate agreement from the underlying contract. This means that different laws can apply to the arbitration agreement and the underlying contract.
The question of which country’s law shall apply to the arbitration agreement arises in many different situations. For example, (i) when a party has commenced action in a court and the respondent contests the courts’ jurisdiction on the grounds that an arbitration agreement covers the dispute at hand, (ii) when a respondent in an arbitration objects to the tribunal’s jurisdiction on the basis that the arbitration agreement is invalid or that the arbitration agreement does not cover the dispute, (iii) when a party challenges an award on the grounds that the arbitration agreement is invalid or inapplicable and (iv) when the losing party opposes enforcement maintaining that the arbitration agreement is not valid or not applicable. Prior to addressing any of the objections mentioned it will be necessary for the arbitral tribunal or the court to make a choice with regard to the applicable law.