Originially from Conflict of Laws in International Commercial Arbitration

Preview

I.INTRODUCTION 

Few terms have attracted more academic attention and discussion than those of lex fori and lex loci arbitri. The relevance of lex fori and lex loci arbitri exhibits particular interest when it comes to the question of what law applies to determine arbitrability, a question that is traditionally linked with the interests of the State of the place of the arbitration, or the State of the courts reviewing an arbitral award at annulment or enforcement proceedings.2 

At a time when public policy was dominating the discussion on arbitrability, the argument that lex fori should apply to determine arbitrability reflected legitimate interests of the State of arbitration to control arbitration proceedings taking place within its geographical boundaries and to ensure that these proceedings comply with the public policy standards of that State. Thus, a State could forbid any arbitration within its territory whose subject matter was inarbitrable, i.e. in conflict with public policy legislation of that particular State. 

However, as the relevance of public policy in the arbitrability discussion has considerably waned in the last decades, the predominance of lex fori as the law applicable to arbitrability makes increasingly less sense. The aim of the chapter is to revisit the scope of application of lex fori and lex loci arbitri to arbitrability, in light of new theories on inhabitability. Specifically, the chapter argues that all arbitrability provisions are conflict of jurisdiction rules, whose objective is to delineate the area of exclusive jurisdiction of its national courts. From this jurisdictional viewpoint, lex fori and lex loci arbitri should not be considered as the default applicable law; rather, they should be relevant only if the actual dispute pending before an arbitration has a territorial or other jurisdictional connection with the courts of the forum or the place of arbitration.