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Part III International Arbitration Agreements: Issues and Perspectives, 9 The Law Governing the Arbitration Agreement: A Transnational Solution? »

Renato Nazzini
From: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators
Edited By: Julio César Betancourt
This chapter examines the law applicable to the arbitration agreement when there is no express choice of such a law. It does not aim to set out a test, or a set of tests, of universal validity or application. Rather, its objective is to review the current state of play and sketch out a framework for the development of a possible ‘transnational’ solution to the problem. The chapter first explains why a separate enquiry into the law governing the arbitration agreement is necessary and what the implications of such a separate enquiry are. Second, it reviews three possible approaches to determining the law governing the arbitration agreement: the application of the law chosen by the parties to govern their substantive rights and obligations; the application of the law of the seat of the arbitration; and the application of ‘transnational’ rules.