To Continue Nationalizing Or To De-Nationalize? That Is Now The Question In International Arbitration - Aria Vol. 12 Nos. 3-4 2001

Almost four decades ago, the idea of the lex mercatoria, which had been
dormant for several centuries, was revived.1 In our modern era, that idea deals
with the “de-nationalization” of the substantive law to be applied by
international arbitral tribunals. A few years later, the doctrine of the “de-nationalized,” “delocalized,” “a-national,” “supranational,” “transnational,”
“expatriate” or “floating award” emerged2 and was then extended from the
mere instance of the award, to the whole range of arbitral proceedings. In
consequence, the discussion over the procedural issues thus raised then sailed
under the flag of “de-nationalized,” “delocalized” or “transnational” arbitral
proceedings. Since then both doctrines, the lex mercatoria and the idea of the
de-nationalization of the arbitral proceedings, have been, and still are,
discussed intensively in international arbitration.3 In the meantime, they seem
to have been already widely accepted in French jurisprudence and doctrine.4
The courts and doctrines of other European countries are more reluctant,
however, to endorse these or similar ideas, or they have even rejected them.5
In particular, the issue of the “de-nationalization” of the arbitral
proceedings has now most prominently been represented in an eminent opus
which was published in 1999—in the English language—in France.6 This
opus is based upon views on private international law and on international
procedural law that are in sharp contrast to traditional views, prevalent not
only in Germany but also in other European countries. It is more than
worthwhile, therefore, to use this book as a catalyst for answering the basic
question with which the theory and practice of international arbitration are
now confronted more and more. That question can be reduced to the
following essentials: Are the new tendencies for de-nationalization as
expressed in our eminent opus compatible with the traditional doctrines of
conflict of laws and of private international law of procedure? If not, do the
traditional tenets governing these two fields of law need to be revised? Or

Table of Contents:

TABLE OF CONTENTS

I. An Opus of Great Importance

II. Today’s Crucial Question in International Arbitration

III. Some Fundamental Positions of the New Doctrine

A. The Law Applicable to the Arbitration Agreement

1. The authors’ general view

2. The principles formulated by French courts and

their criticism

3. The authors’ restrictive views

4. Criticism

B. The Law Governing the Arbitral Procedure

1. Point of departure and traditional doctrine

2. The doctrine of the authors

3. Result

C. The Conflict of Laws Rules Applicable to the

Determination of the Proper Law of the Contract

D. Transnational Rules Chosen by the Parties as the Law

Applicable to the Contract

1. The traditional conflict of laws doctrine

2. The authors’ view of complete “de-nationalization”

3. Criticism

E. The Determination of the Proper Law by the Arbitrators

in the Absence of the Parties’ Choice of Law

1. The view of the authors

2. The traditional doctrine of international arbitration

law

3. Criticism of the authors’ view

F. The Continued Existence of Arbitral Awards that have

been Set Aside by the Courts of the Seat of the

Arbitration

1. The view of the authors and two recent decisions

by national courts

2. Criticism

IV. Conclusions