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ODEC 9005 - Conflict of laws issues in international arbitration

Type d'enseignement : Seminar

Semester : Spring 2017-2018

Number of hours : 24

Language of tuition : English

Pre-requisite

aucun

Course Description

The course addresses the various conflict of law issues international arbitrators are called upon to address to resolve disputes referred to them. International arbitrators are faced with jurisdictional, procedural and substantive issues, which may have to be resolved on the basis of different laws. The legal regime of an arbitration is the result of the laws of the place of arbitration, of the possible place of enforcement and of the law chosen by the parties or determined by the arbitrators to govern both the procedure and the substance of the dispute. The course also examines theories according to which jurisdictional, procedural and substantive aspects of international arbitration are governed by autonomous substantive rules. As far as jurisdictional issues are concerned, the course deals with the law applicable to the arbitration agreement and examines the theories according to which the arbitration agreement is governed by the law applicable to the parties' substantive obligations, by the law of the place of arbitration or by autonomous substantive transnational rules. The role of the law of the place of arbitration as lex arbitri in defining the scope of arbitrators' jurisdiction and power is also addressed. With respect to the procedural issues, the course addresses the shrinking role of the law of the place of arbitration and the corresponding growing role of party autonomy and arbitrators' discretion in determining the rules applicable to the procedure. With regard to the merits of the dispute, the course examines the preponderant role of party autonomy in the choice of the applicable rules, and the parties' freedom to select national or a-national rules. The evolution from a conflict of law approach, whereby arbitrators are required to select the applicable substantive law on the basis of conflict of law rules, to one based on their authority to directly determine the applicable substantive rules is also examined. The course analyses the criteria used by arbitrators to determine the applicable rules of law in the absence of agreement between the parties and their approach to mandatory rules of law. The course examines the conditions and the scope of the possible resolution of disputes on the basis of equity. In examining these issues, the focus of the course is on the difference between arbitrators' and judicial authorities' respective positions, particularly whether the latter enjoy broader discretion in the application of the law.

Teachers

CARLEVARIS, Andrea (Partner, BonelliErede, former Secretary General of the ICC International Court of Arbitration and Director of the ICC Dispute Resolution Services)

Course validation

Written exam.

Required reading

  • G. Born, International Commercial Arbitration, Second Edition, 2014, pages 2614-2778
  • N. Blackaby & C. Partasides, Redfern and Hunter on International Arbitration, Sixth Edition, 2015, pages 155-228
  • P. Bernardini, Arbitration Clauses: Achieving Effectiveness in the Law Applicable to the Arbitration Clause, in A.J. van den Berg (ed.), Improving Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, 197 (ICCA Congress Series No. 9, 1999)
  • G. Kaufmann-Kohler, Identifying and Applying the Law Governing the Arbitration Procedure – The Role of the Law of the Place of Arbitration, , in A.J. van den Berg (ed.), Improving Efficiency of Arbitration
  • Agreements and Awards: 40 Years of Application of the New York Convention, 197 (ICCA Congress Series No. 9, 1999)

Additional required reading

  • L. G. Radicati di Brozolo, Ethics and the law applicable to the merits in arbitration, in Mélanges en l'honneur du Professeur Pierre Mayer, 753 (2015)
  • G. Bermann, Mandatory Rules of Law in International Arbitration, in F. Ferrari & S. Kröll (eds.), Conflicts of Laws in International Arbitration, 325 (2011)