Why a choice of law should never be arbitrary

By Helen Watson

We take a look at the different laws governing the various aspects of international arbitration including a recent commercial court decision on determining the law of the arbitration agreement.

The legal framework governing international arbitration is complex, and different laws may apply to its various elements, so that the law of the substantive dispute, the procedural law of the arbitration and the law of the arbitration agreement may not necessarily be the same.

Assuming that the underlying dispute is contractual, the applicable law of the dispute will be the law of the contract. Most contracts contain an express choice-of-law clause, but where the contract is silent as to its governing law the arbitral tribunal will generally determine the most appropriate law to apply to the substantive dispute…

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