The Proper Law - Chapter 3 - Handbook on International Commercial Arbitration

Author(s):

Peter Ashford

Page Count:

8 pages

Media Description:

PDF from "Handbook on International Commercial Arbitration"

Published:

October, 2009

Jurisdictions:

International

Practice Areas:

Arbitrators and Arbitral Tribunals,

Commercial Disputes,

Arbitral Adjudication,

Applicable Law,

Sources of Arbitration Law

Author Detail:

Peter Ashford is Solicitor of the Supreme Court and a Partner at Cripps Harries Hall LLP and is Head of the firm's Commercial Peter Ashford is a Partner and Head of commercial dispute resolution in the leading United Kingdom Firm of Cripps Harries Hall LLP, Tunbridge Wells, United Kingdom. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes, especially those involving an international aspect, partnership and LLP disputes, professional issues for solicitors and professional negligence. He is particularly experienced in complex, high value claims and acts for many international clients. He handles disputes in court, arbitration, mediation and disputes without any formal process. Mr. Ashford received his training in London and qualified in 1986. He joined Cripps Harries Hall LLP in 1987 and became a partner in 1991.

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Description:

Originally from Handbook on International Commercial Arbitration

Preview page

The agreement to arbitrate can involve the interaction of a number of different laws and it is simply wrong to refer to the arbitration as being governed by one law as might be inferred from clauses in a contract that provide for arbitration as follows:

Any dispute of difference arising out of this agreement shall be referred to arbitration under the Rules of Arbitration of the International Chamber of Commerce. The arbitration shall take place in Paris.

And a governing law clause that provides: “This agreement is governed by English law.”

To the uninitiated, it might be thought that only English law might be relevant. In fact, there are many more laws that might be relevant. Confusingly, many of these are described in Latin. Appendix 1 is a list of various laws and corresponding descriptions and meanings. The laws that may have to be considered in an international commercial arbitration include:

1 The law governing the parties’ capacity to enter into the main agreement;

2 The law governing the parties’ capacity to enter into an arbitration agreement;

3 The substantive law of the contract or obligations in dispute;

4 The law governing the agreement to arbitrate;

5 The law governing the proceedings of the Arbitral Tribunal upon the particular reference; and

6 The law governing the recognition and enforcement of the Award (which may involve numerous jurisdictions dependant upon where assets are located).