Conflicts of Law and International Commercial Arbitration – Can Conflict Be Avoided?
Sapna Jhangiani
ABSTRACT
International arbitration, by its nature, raises conflict of laws issues because of the interaction between different legal systems. Parties to international arbitrations face more potential choice-of-law issues than international litigants, and such issues include: what law governs the arbitration agreement where the parties have not expressly agreed this?; what law governs capacity?; what is the lex arbitri?; and what law governs the granting of interim measures by a tribunal?
The author analyzes the common law approach to the above issues, and argues that there is not enough consistency and guidance to navigate them. A lack of harmonization in relation to these issues leads to a lack of certainty for users which may, in turn, discourage users away from international arbitration as a dispute resolution process. The author therefore proposes reforms and preferred approaches to be adopted by the international arbitration community in order to lead to greater certainty in the outcome to these issues.