Loukas Mistelis - Clive M. Schmitthoff Professor of Transnational Commercial Law and Arbitration; Director, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London.
The law and rules governing international arbitration procedure (also referred to as “lex arbitri”) is the focus of this article. The references to realism are effectively references to Karl Popper and his work on verification or disproval of theories. The article examines in particular whether the existing dominant definition of “lex arbitri” in English law can be verified or disproved on the basis of practice and the current law. In addition, the article examines whether this definition meets international standards.
More generally, this article looks at the law governing arbitration procedure and the ways in which this law is determined. This article defines “lex arbitri,” establishes its independence from the law applicable to the merits of the dispute and delimits its scope (Section II). In addition, it distinguishes between two types of “lex arbitri”: the internal lex arbitri that regulates the arbitration procedure before the arbitral tribunal and the external lex arbitri that provides the regulatory framework for the relation of the arbitration proceedings with the courts and establishes which courts may perform a supervisory function. Next, the ways of determining the lex arbitri are looked at with particular emphasis on party autonomy and the importance of the seat of arbitration (Section III). Finally, the article draws some conclusions while looking at the impact of transnationalization on the debate on the “lex arbitri” (Section IV).