Arbitral discretion in resolving conflicts of laws - the case for a bright-line closest connection test in international commercial arbitration

2016-12-05T04:58:17Z (GMT) by Hayward, Benjamin Luke
This dissertation establishes that the conflict of laws in international commercial arbitration – concerning the substantive law governing the merits of the dispute – should be the subject of reform. It proposes the introduction of a bright-line test, based on the concept of the closest connection. Its specific recommendation is for the adoption, in international commercial arbitration, of a modified version of the conflicts rule contained in Art. 4 Rome Convention. That provision incorporates a closest connection test, subject to a characteristic performance presumption. This dissertation’s recommendation includes the adoption of modifications to the original Art. 4 Rome Convention text. These modifications are necessitated by the arbitration context, and are also prompted by better understandings of the original text’s limitations that have been obtained through its application in case law and its consideration in scholarly analysis since the instrument was first opened for signature on 19 June 1980. This dissertation is situated at the intersection of international commercial arbitration and the conflict of laws. It is essentially a study of the tension in the law between certainty and flexibility – and more specifically, between provisions described by law and economics scholarship as rules and standards. Though this dissertation is concerned with a very specific subject-matter, its analysis is broad-ranging and contextual. It draws upon the law, practice and literature concerning conflicts of laws relating to both arbitration and State court proceedings. It also takes into consideration the way in which its analysis affects, and is affected by, other features of international commercial arbitration, and other aspects of arbitral procedure. This dissertation’s analysis incorporates consideration of the way in which conflicts questions are currently regulated in an extensive sample of instruments. These include the UNCITRAL Model Law on International Commercial Arbitration, the arbitration laws of Switzerland, France and the United Kingdom, and 102 sets of past and present arbitration rules promulgated by key arbitral institutions and other interested bodies. It also takes the New York Convention as an essential baseline reference point. This dissertation recognises that the reform of arbitral procedure is always ongoing, and must be directed at meeting the needs of the commercial parties who are the true users of international commercial arbitration. To this end, its proposal is intended to contribute to the ongoing improvement of the law and practice of international commercial arbitration – an important form of commercial dispute resolution – and ultimately the promotion of international trade, and international economic wellbeing.