Introduction

Disputes arising out of contracts with an international element are most often solved in international commercial arbitration. The law applicable to the substance of the dispute thus corresponds to the law applicable to the contract. There are several categories of substantive rules that can be applied – uniform substantive rules contained in international conventions, national law or non-state rules (lex mercatoria). The party autonomy is primary as regards the determination of applicable substantive rules. Modern arbitration laws and arbitration rules enable the parties to choose not only national law but also other rules of law (e.g. non-state rules). In the absence of the choice it is up to the arbitrators to determine applicable substantive rules. There are several approaches to this arbitrators’ power depending on lex arbitri and/or arbitration rules.

The aim of this chapter is to provide an overview of determination of law applicable to the substance of a dispute. After going through this chapter a student should be able: to name what substantive rules can be applied in international commercial arbitration and to explain the role of the parties and arbitrators as regards the determination of applicable law.

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Applicable law
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Applicable law
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Further recommended sources – books

• BINDER, P. International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions. Kluwer Law International, 2019. Part A, Chapter VI.
• BLACKABY, N., PARTASIDES, C., REDFERN, A., HUNTER, M. Redfern and Hunter on International Arbitration. 6th ed. Oxford: Oxford University Press, 2015, Chapter 3.
• BORN, G. B. International Commercial Arbitration. 2nd ed. Kluwer Law International, 2014, Chapter 19.
• FERRARI, F., CORDERO MOSS, J. (eds). Iura Novit Curia in International Arbitration. Huntington: Juris, 2018.
• GAILLARD, E., SAVAGE, J. Fouchard Gaillard Goldman on International Commercial Arbitration. Kluwer Law international, 1999, Part 5.
• LEW, J.D.M., MISTELIS, L. A., KRÖLL, S.M. Comparative International Commercial Arbitration. The Hague: Kluwer Law International, 2003, Chapters 17–19.
• MOSES, M.L. The Principles and Practice of International Commercial Arbitration. 3rd ed. Cambridge: Cambridge University Press, 2017. Chapter 4.

Further recommended sources – Articles, papers, electronic sources

• BASEDOW, Jürgen. EU Law in International Arbitration: Referrals to the European Court of Justice. Journal of International Arbitration. 2015, Vol. 32, No. 4, pp. 367–386.
• BAUR, S., PÖRNBACHER, K. Choice of Law and its Limits in International Arbitration. In: KLAUSEGGER, Ch., KLEIN, P. et al. (eds.) Austrian Yearbook on International Arbitration. 2015, pp. 127–147.
• Dossier of the ICC Institute of World Business Law: The Application of Substantive Law by International Arbitrators. 2014.
• KluwerArbitration [online]. Available from: http://www.kluwerarbitration.com/