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

3 Identified Issues in the Current Regulatory Regime

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

Benjamin Hayward

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 27 May 2020

Subject(s):
UN Sales Convention and choice of law — Contractual obligations — Legal risk in multi-state transactions — Applicable law in multi-state transactions

This chapter identifies problematic features of the current regulatory regime for conflicts of laws in international commercial arbitration. The current regulatory regime evidences broad arbitral discretion in the ability of arbitrators applying pure voie indirecte provisions to adopt any conflicts rule considered ‘appropriate’, ‘applicable’, or ‘authoritative’; through the pure voie directe’s wide freedom to directly choose the ‘appropriate’, ‘most appropriate’, or ‘applicable’ law; through the facilitative role that conflict of laws rules may play within the pure and guided voie directe; and through arbitrators’ use of implicit conflicts analyses under pure voie directe provisions. The chapter then analyzes the justifications for arbitral discretion in resolving conflicts of laws, following with theoretical and practical critiques of the current regulatory regime.

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