Part III International Arbitration Agreements: Issues and Perspectives, 8 The Dangers of Neglect: Governing Law of Arbitration Agreements

Subject(s):

Arbitral agreements — Arbitral tribunals — Arbitrators — Claims — International courts and tribunals, procedure

This chapter argues that the issue of the law applicable to arbitration agreements has been neglected to such a tremendous extent that even the major arbitral institutions fail to include the choice of law provisions in their model arbitration clauses. As a result of that oversight, very rarely do the parties include the choice of law provision in their arbitration agreements, and many arbitrations degenerate into unnecessary debates as to which law applies. The time has come for parties to select explicitly the law that will govern their arbitration agreement, and perhaps more importantly, for the institutions to recommend that the parties select the law to govern their arbitration agreements. The various approaches offered by arbitration practitioners on the subject are discussed.