This chapter deals with (1) the propriety of international arbitrators’ legal inquiries, (2) the place of transnational law, and
(3) the impact of the applicable substantive law.
1. THE PROPRIETY OF INTERNATIONAL ARBITRATORS’ LEGAL INQUIRIES
The following questions should be addressed: Should an arbitral tribunal make independent enquiries into the contents of the applicable law, beyond the authorities and sources of law submitted by counsel? Are there restrictions in doing so? What are the implications for counsel in presenting legal expert evidence?
An arbitral tribunal should in principle make independent enquiries into the law because parties expect the arbitral tribunal to come up with the correct legal findings for the right reasons. This is true even if the parties’ submissions on the law turn out to be incomplete for the purposes of the arbitrators’ analysis.
For arbitration to be a reliable and credible jurisdiction, it must guarantee legal predictability, which exists only if the decision process ensures that the outcome of the case will be legally correct. It is crucial that arbitral tribunals make the correct legal findings because the award cannot be corrected on appeal for mistakes of law.
Furthermore, the award should contain a statement of reasons demonstrating that the outcome is the correct one. While some arbitration laws do not require a statement of reasons, reasons must nonetheless exist to support the findings in the award. In Swiss law, for instance, the award is not required to state reasons, but if the contents of an award show that the arbitral tribunal apparently overlooked an objectively relevant submission, it must be shown, if the award is challenged, that this submission was irrelevant or implicitly