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Conflict of Laws and Arbitral Discretion - The Closest Connection Test by Hayward, Benjamin (5th January 2017)

1 Introduction and Context

From: Conflict of Laws and Arbitral Discretion: The Closest Connection Test

Benjamin Hayward

Subject(s):
Choice of law clauses — Scope of applicable law — Substance and procedure — Contractual obligations — Foreign arbitral awards — Applicable law in multi-state transactions — Substance and Procedure

This introductory chapter first sets out this book’s focus, namely the conflict of laws in international commercial arbitration. Its argument is twofold: first, that the discretion reposed in arbitrators resolving conflict of laws questions concerning the substantive law governing the merits in international commercial arbitration is too wide; and, second, that a bright-line test based on the concept of the closest connection is a preferable mechanism by which these questions can be resolved. In essence, this book critiques discretion in arbitral procedure in the specific arbitral conflicts context. The remainder of the chapter establishes the background to this book’s analysis. It takes as its starting point the preferred status of international commercial arbitration, and from this point introduces arbitral conflicts of laws—this book’s key subject-matter.

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