2 The Current Regulation of Conflicts of Laws in International Commercial Arbitration
- Implied choice — Rome Convention — Rome I Regulation and choice of law — Legal risk in multi-state transactions — Applicable law in multi-state transactions
This chapter examines the current regulation of conflicts of laws in international commercial arbitration. It shows that diversity of approach is the regulatory status quo. It discusses the legal framework regulating conflicts questions, the categories of private international law provisions operating in international commercial arbitration, and ten conflict of laws rules arbitrators may draw upon. Arbitrators may apply the conflicts rules of: the arbitral seat; the State most closely connected to the dispute; the State which, absent the parties’ arbitration agreement, would have had jurisdiction over the dispute; the arbitrator’s home jurisdiction; the State of likely enforcement. They may also apply the substantive law of the seat of arbitration; the closest connection test; the cumulative approach; general principles of the conflict of laws; and they may also adopt conflicts rules found in a relevant international instrument.