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The discussions mostly focus on determination of arbitrators choosing applicable law to govern the contract in absence of parties’ choice, which origins from the conflict of two schools of arbitrators. One insists that there is the only and one solution always can be found under the perfect and stringent law systems. To apply the law is as same as to apply the theorems of mathematics. In their view this is not only possible, but also desirable. They insist the strict rules should be made for arbitrators to follow to choose the applicable law in international commercial arbitration, which will produces certainty and predictability for parties. On the other hand, another school of arbitrators which contests the absolute predictability, claims the arbitrator will have to take the special circumstances of the case into account. In their opinion, no legal systems provide definite solutions to all problems. Rules which create certainty and predictability also bring about rigidity.
Obviously, it is difficult to constitute the rules which can be followed to choose the applicable law to govern the substantive dispute of contract in international transaction, which could be applied like to apply the theorems of mathematics, as reference for arbitrators. In a purely domestic contract, the applicable law will usually be that of the country concerned. If I purchase a car in Beijing, Chinese law will be the applicable law of that contract. However, the choice of applicable law to govern the contract in international commercial transaction is far more complicated. There maybe two or more different systems of law (including national law, the lex mercatoria and even codified terms and trade usage etc.) capable qualifying as the proper law of the contract. The modern tendency is flexible to arbitrators in deciding which law to be applied to govern the substantive dispute in an international commercial contract where parties made neither express nor implied choice of applicable law.
【注释】Alan Redfern and Martin Hunter ‘Law and Practice of International Commercial Arbitration’ (3rd London Sweet& Maxwell 1999) p77
Compagnie d’Armement Maritime SA v Compagnie Tunisienne de Navigation SA A.C. 572
Klaus Peter Berger, International Economic Arbitration, p490, 1993
Washington Convention, Art. 42.
ICC Arbitration Rules, Art. 17(1).
UNCITRAL Model Law Art. 28(1)
The Rome Convention, Art.3.
‘arbitration of international commercial contracts: the law to be applied by the arbitrators’ in Jaffey on Conflict of Laws Edited by C.M.V. Clarkson, Jonathan Hill. London : Butterworths, 1997.p27
For further discussion, See Alan Redfern and Martin Hunter ‘Law and Practice of International Commercial Arbitration’ (3rd London Sweet& Maxwell 1999) pp98-128. See also Peter Nygh ‘Choice of Forum and Laws in International Commercial Arbitration’ Forum Internationale No.24 pp19-21
‘A Practical Guide to International Commercial Arbitration’ Edited by Richard Garnett ... . Dobbs Ferry,
N.Y. : Oceana Publications, 2000
UNCITRAL Model Law Art. 34(2)(b)(ii)
Rome Convention Art. 7(2)
Vita food products Inc. v Unus Shipping Co. AC 290
Ole Lando ‘The Law Applicable to the Merits of the Dispute’ in ‘Essays on International Commercial rbitration’
Edited by Petar Graham & Trotman, 1989. 131
Rome Convention Art. 3(1)
‘A Practical Guide to International Commercial Arbitration’ Edited by Richard Garnett ... ]. Dobbs Ferry,
N.Y. : Oceana Publications, 2000
Ole Lando ‘The Law Applicable to the Merits of the Dispute’ in ‘Essays on International Commercial rbitration’
Edited by Petar Graham & Trotman, 1989. p136
Alan Redfern and Martin Hunter ‘Law and Practice of International Commercial Arbitration’ (3rd London Sweet& Maxwell 1999) p129
Beda Wortmann ‘Choice of Law by Arbitrators: The Applicable Conflict of Law System’ (1998) 14 Arbitration International p 97
‘arbitration of international commercial contracts: the law to be applied by the arbitrators’ in Jaffey on Conflict of Laws Edited by C.M.V. Clarkson, Jonathan Hill. London : Butterworths, 1997.p143
Beda Wortmann ‘Choice of Law by Arbitrators: The Applicable Conflict of Law System’ (1998) 14 Arbitration International p 106
Ole Lando ‘The Law Applicable to the Merits of the Dispute’ in ‘Essays on International Commercial rbitration’
Edited by Petar Graham & Trotman, 1989. p139
UNCITRAL Model Law Art. 28(2)
Arbitration Act 1996, S 46(3)
Beda Wortmann ‘Choice of Law by Arbitrators: The Applicable Conflict of Law System’ (1998) 14 Arbitration International p 107
For further discussion, See Beda Wortmann ‘Choice of Law by Arbitrators: The Applicable Conflict of Law System’ (1998) 14 Arbitration International p 105
Beda Wortmann ‘Choice of Law by Arbitrators: The Applicable Conflict of Law System’ (1998) 14 Arbitration International p 110
UNCITRAL Arbitration Rules, Art.33.
Model Law . Article 28 (2)
Alan Redfern and Martin Hunter ‘Law and Practice of International Commercial Arbitration’ (3rd London Sweet& Maxwell 1999) p132
Beda Wortmann ‘Choice of Law by Arbitrators: The Applicable Conflict of Law’ (1998) 14 Arbitration International p 99
Ole Lando ‘The Law Applicable to the Merits of the Dispute’ in ‘Essays on International Commercial rbitration’
Edited by Petar Graham & Trotman, 1989. p141
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