关于国际商务仲裁中的实体法选择问题(英文)
关于国际商务仲裁中的实体法选择问题(英文)
谷啸
【摘要】What I try to discuss in this essay is the choice of substantive law in international commercial arbitration. The choice of substantive law applicable to the disputes in international arbitration is of crucial important. The agreement made between the parties in international commercial transaction is quite detailed, however, an agreement intended to create legal relation does not exist in a legal vacuum. The question of choice of substantive law in international commercial arbitration will be looked at from the point of view of the parties firstly, then from the point of view of the arbitrators. Latter’s point of view is the emphasis of this essay. The arbitrator has to face the questions of what the proper law applied that governs the interpretation and validity of the contract, the rights and obligations of the parties, the mode of performance and the consequences of breaches of the contract. Which was called arbitration within the arbitration or mini-arbitration.
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INTRODUCTION
International commercial arbitration, unlike its domestic counterpart, will usually involve more than one system of law or legal rules. Indeed it is possible, to identify at least five different system of law which in practice may have a bearing on an international commercial arbitration. These are
(i) the law governing the parties’ capacity to enter into an arbitration agreement;
(ii) the law governing the arbitration agreement and the performance of that agreement;
(iii) the law governing the existence and proceeding of the arbitral tribunal-the curial law of the arbitration or, in a better phrase, the lex arbitri;
(iv) the law, or the relevant legal rules, governing the substantive issues in dispute-generally described as the “applicable law”, the “governing law”, “the proper law of the contract ”, or “the substantive law”;
(v) the law governing recognition and enforcement of the award.
What I try to discuss in this essay is the choice of substantive law in international commercial arbitration. The choice of substantive law applicable to the disputes in international arbitration is of crucial important. The agreement made between the parties in international commercial transaction is quite detailed, however, an agreement intended to create legal relation does not exist in a legal vacuum. The question of choice of substantive law in international commercial arbitration will be looked at from the point of view of the parties firstly, then from the point of view of the arbitrators. Latter’s point of view is the emphasis of this essay. The arbitrator has to face the questions of what the proper law applied that governs the interpretation and validity of the contract, the rights and obligations of the parties, the mode of performance and the consequences of breaches of the contract. Which was called arbitration within the arbitration or mini-arbitration.
