The Law Applicable To The Arbitration Agreement Towards Transnational Principles

11 octobre 2021 - 4 minutes read

2 In the absence of a choice by the parties, the law of the seat of the arbitral tribunal plays a predominant role in determining the law applicable to the arbitration agreement. It addresses the following issues, three of which concern the validity of the arbitration agreement: a first essential distinction concerns the difference between content and form.13 The first concerns whether there has been a valid meeting between the heads of the parties with regard to the settlement of disputes through arbitration procedures. The latter point concerns specific formal rules of validity established to ensure that the parties are aware that, by concluding the arbitration agreement, they are superseding the jurisdiction of the otherwise competent courts. There is a hierarchy between the two subjects. Formal validity applies only if and to the extent that the parties have entered into an arbitration agreement. As in general conflict-of-law theory,14 formal and substantive validity are subject to different approaches to conflicts of laws. This may, but does not necessarily mean, that the two subjects are subject to different laws. Although the distinction seems obvious and clear, state courts have sometimes not distinguished between the formal validity requirements of the New York Convention and the substantive validity requirements of national law, and the latter apply to both requirements. 31682, but also for the law applicable to the substantive validity of the arbitration agreement and, as we have seen above, 83 for the law that determines the capacity to arbitrate claims and the formal validity of this agreement. Indeed, this approach has been taken up by some older French judicial decisions.84 While, from a practical point of view, the importance of the seat of arbitration is reduced to a mere « formal jurisdiction » (formal legalization) of arbitration,85 its importance for questions of legal choice related to arbitration and arbitration is not sufficiently emphasized. Since we are also faced with a single point of connection for a large number of legal issues, the seat of arbitration has an important harmonizing effect on the legal issues applicable in international commercial arbitration.86 Arbitration is essentially an agreement to establish « private justice », for example.

Private dispute resolution by a private court.1 For this reason, it is now generally accepted that arbitration agreements are hybrid in nature and include both procedural and contractual elements.2 In addition to specific scenarios such as arbitration under investment protection agreements3 or free trade agreements, any arbitration proceedings must be the subject of an agreement between the parties. The English Commercial Court explained the contractual nature of the arbitration proceedings as follows: it appears that there is a glaring discrepancy between the amount of doctrinal writings and the need for clarification in determining the law governing the substantive validity of the arbitration agreement. Far from the nine theories that Marc Blessing lists in his commentary on Julian Lew`s CICA report in 1998, that of art. V (1) (a) The New York Convention contains the modern view of a single conflict rule for determining the law applicable to the arbitration agreement. It provides that enforcement of the award may be refused if: 32 ibid., 200. See KP Berger (n 1) 301-34 in general. With regard to the importance of the seat in international arbitration and the problems related to the determination of the seat, cf. Hill, J, « Determining the Seat of an International Arbitration: Party Autonomy and the Interpretation of Arbitration Agreements » (2014) 63 ICLQ 517CrossRefGoogle Scholar. . .

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