3 The Nature of Abuse of Rights in International Arbitration

Subject(s):

Choice of law — General principles of international law — Arbitration

This chapter explores the nature of abuse of rights in international arbitration. It determines the legal basis of abuse of rights, questions the transnational nature of the principle, and examines whether it comprises a principle of transnational public policy. A scrutiny of the principle’s application in international arbitration not only demonstrates the omnipresence of the principle in most legal systems as well as under international law, but provides compelling evidence that a general principle of abuse of rights has emerged in international arbitration. Moreover, a review of different legal systems testify that the principle is recognized as a general substantive and procedural principle of law. This is further confirmed by the views of renowned scholars and by the constant application of abuse of rights as a general principle of law. However, while the principle reflects fundamental interests that decision makers should uphold, its depiction as part of transnational public policy is controversial.