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(iii) The conflict of law rules of country which would have had jurisdiction in the absence of an arbitration clause
For the arbitration agreement has dispossessed the jurisdictional authority of that country which would have had jurisdiction in the absence of an arbitration clause, and as a consequence, the country may reaffirm its control over arbitration in this way. This theory was criticized on several grounds. First, the unpredictability of the dispute’s result would increase, because it''s difficult to answer the problem of which country would have had jurisdiction to settle the dispute between parties in practice. Second, in order to ascertain the country, in the absence of the arbitration agreement, which would have had jurisdiction, the arbitrator also has to select a kind of conflict of laws rules.
(iv) Cumulative choice of all conflict of law systems having the connection with the dispute
The approach looks at all conflict of laws system having any contact with the dispute. If all the legal system connected with the dispute lead to the same solution, the arbitrator can apply it. This theory contains both advantages and disadvantages. The major advantage is both parties will be satisfied if their own law is taken into account, secondly the enforceability of the award is more likely, since the arbitrator has based his decision on all conflict of laws system related to the dispute. But this theory doesn’t provide a solution when the conflict of laws rules of the countries connected with the dispute lead to different substantive laws. Furthermore, the arbitrator will have discretion in order to establish which conflict of laws system he has to take into account. In addition to that, the review of legal orders will be a time-consuming process, which contrasts one of the most important motives of the parties in choosing arbitration.
(v) The conflict of law rules of public international law
This approach encourages the arbitrator to apply conflict law rules which are supposedly contained in public international law, in order to determine the applicable law. This viewpoint can be challenged on practical grounds because public international law cannot provide real guidance to choose the conflict rules of international law.
(vi) The conflict of law rules which arbitrators consider being appropriate.
Almost all leading conventions on arbitration or international arbitration rules contain a provision allowing the arbitrators to apply the rules of conflict of laws which they deem appropriate or applicable. This theory is a softening of traditional strict conflict rules. The UNCITRAL Rules states that: “failing any designation of the applicable law by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.” The Model Law adopts the same terminology. This approach, however, is also criticized by failing to produce certainty and predictability for parties. Moreover, the arbitrator should have the same dissertation to apply the applicable law directly if they can apply the rules of conflict of laws which they deem appropriate.
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