Why the Applicable Law in International Commercial Arbitration Does Not Matter and Why It Should
Publication: Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 16, Issue 1
Abstract
The principle of minimum interference of courts into the arbitral proceedings has been vital for the success of international commercial arbitration. The autonomy of the parties to choose their arbitrators based on expertise and parties’ interest in confidential proceedings shall not be compromised by courts supervision or review. The cross-border nature of disputes requires the arbitrators to determine the applicable law following the arbitration rules and laws and the conflict of laws analysis provided therein. The accuracy of the arbitral award will often depend on the accuracy of the conflict of laws analysis. The main principles such as party autonomy, confidentiality, or efficiency are followed under the assumption that the award will remain accurate. Yet arbitral awards issued without any conflict of laws analysis can hardly be challenged by the parties. The determination of the applicable laws falls under the undesirable court’s review on merits, that the arbitration world has successfully fought against at latest since the entry into force of the New York Convention of 1958. It is the purpose of this paper to explore to which extent a review of the conflict of laws analysis would endanger main principles of international commercial arbitration and to propose solutions which may be accepted by the international arbitration community.
Introduction
The awards issued in international commercial arbitration are final and binding. For most arbitral institutions this means that arbitration is a one-stop-shop with no possibility of appeal. The possibility to set aside the award before the courts of the seat of arbitration is limited to major procedural flaws in the arbitration proceedings, with no review of the merits or facts of the case. Both major legal instruments in commercial arbitration, foremost the New York Convention of 1958 (NYC) applicable in 169 states, but also the United Nations commission on international trade law (UNCITRAL) Model law currently implemented in 85 states, do not permit almost any review on the merits of an award to which the Convention applies. To put it more simply, any wrong application of the law by the arbitrators in most states may never be reviewed by a court. But in international arbitration it goes even beyond this. Even if the arbitrators decide not just to apply the law wrongly, but to apply the law of the wrong country without any proper analysis on the applicable law, it will usually remain outside of the power of the courts to provide any remedy to the parties. The determination of the applicable law falls within the courts’ review on merits which is successfully abandoned by the arbitration instruments.
It is the goal of this paper to test the hypothesis that the wide discretion of arbitrators to determine the applicable law in international commercial arbitration requires some review of the decision on the applicable law. The analysis will start by establishing the limited possibilities to review a foreign award on merits based on the public policy exceptions or in case arbitrators exceed their authority provided by both, the NYC and the UNCITRAL Model Law. It will give an overview of the current development in legislation and practice that goes even further by allowing waivers of the claim for annulment or waivers of objections to enforcement of the award before the dispute arose. The importance of the applicable law for parties who chose international arbitration will be based on the results of four surveys: Queen Mary Survey on Corporate Choices in International Arbitration: Industry Perspectives of 2013; Queen Mary Survey on Driving Efficiency in International Construction Disputes of 2019; Queen Mary Future of International Energy Arbitration Survey Report of 2022 and Nalmark and Keer International private commercial arbitration expectations and perceptions of attorneys and businesspeople a forced-rank analysis of 2002. Two of the mentioned surveys are specifically related to construction arbitration and arbitration in the energy sector. The results highlight conflicting interests of the parties as accuracy remains more important than efficiency, but parties expect to achieve accuracy by the expertise of the arbitrator without widening the grounds for review. The paper discusses why the determination of applicable law deserves to be exempted from the prohibition of review on merits and propose solutions how such review could be conducted.
Background and Literature Review
Commercial arbitration is ever-growing with the major arbitral institutions achieving record numbers of submitted cases in 2020. The concerns of court intervention in the arbitral proceedings that existed at the time of drafting of the NY Convention and the UNCITRAL Model Law led to the exclusion of almost any possibility of courts’ review how the applicable law has been determined by the arbitral tribunal. This has been in detail discussed in the paper of Linda Silbermann/Franco Ferrari in 2011, whose paper is also motivated by the concern that the choice of law should matter more in international arbitration. In 2017 Helmut Ortner and Yoanna Schuch discussed how arbitrators should determine the applicable law, in a paper also motivated by the concern that there is no review of the arbitral award on this matter and that arbitrators often do not pay due attention to the conflicts of laws. The purpose of this paper is to go a step further and discuss possibilities of introducing some sort of review over the determination of the applicable law in arbitration. The idea is to analyze the governing international instruments and conflicting arbitration principles that speak in favor or against such review and suggest appropriate solutions. The greatest challenge is to identify solutions which may be accepted in the arbitration world that is in general very hostile toward any expansion of the court review of the arbitral awards.
Methodology and Limitations
The paper specifically focuses on the possibility to review the arbitral award on the grounds of wrongly determined applicable law. However, there are several limitations to the analysis, as the literature review shows there is little research published on the topic, and almost no case law specifically on this matter. Therefore, conclusions can only be drawn from the broader question of the review of the award on merits and it must be argued if and why the conflicts of law analysis should be treated as a typical case of review on merits or deserves a special status. A step back needs to be taken to contrast the arbitration principles that led to the prohibition of the review on merits, to examine the balance between the aim to reach an accurate award and efficiency achieved with the limitations of the review on merits. The normative method will further be used to identify and interpret applicable arbitration laws and rules on the possibility of courts to review arbitral awards with regards to the question of determination of the applicable law.
The results or four widely conducted and previously published surveys, two of which are specifically related to construction arbitration and arbitration in the energy sector will be used to examine how important the applicable law is for the parties who chose arbitration, to which extent the parties value expertise of arbitrators on this matter and if accuracy of the award has lost its importance when compared to efficiency. A further limitation to this paper is that no question in the surveys directly addresses the conflicts of law analysis, but conclusions have to be drawn from other questions that are related to this issue. Case law and commentaries will be used to establish if heavy reliance on the expertise of arbitrators is justified to abandon any kind of review and if more voices from the practice and science have been raised to reform the current regulation and practice.
The reasons behind the current legislation and if they allow for a different development or application in the future will be explored by using the dogmatic method. Finally, the analytical method will be used to draw conclusions on future development on the role of applicable law in international commercial arbitration and its review by courts.
Hypothesis Testing and Discussion
The New York Convention and UNCITRAL Model Law Regime
The aim of this section is to establish to which extent a review on the applicable law is permitted in comparative law under the influence of the NY Convention and the UNCITRAL Model Law. It will further analyze the current developments in case law and legislation on the matter. In particular, the somewhat newly introduced option for the parties to waive their rights to annulment of the award or even to waive any objection against the enforcement of the award in advance will be addressed, as it showcases further restrictions of the recourse against the arbitral awards.
The Limitation of Review on the Applicable Law
The contribution of the NYC to international commercial arbitration is enormous in many different aspects. If we had to choose three main success points it would be that it ensured enforceability of foreign arbitral awards in 169 states, courts must respect an arbitration agreement as binding and the grounds for non-enforcement of foreign arbitral awards are very limited. It is the NYC who boldly made a fundamental and strategic decision that the substantive merits of the award do not, in themselves, constitute a ground on which recognition or enforcement can be refused (Kronke 2010, p. 11). However, Art V of the NYC opened the door that the judicial review on merits may still influence the enforceability. As it is common that arbitration does not open the door to appeal, it does provide for a remedy to set aside the award in the state where the award was made, usually the seat of arbitration. Under Art V of the NYC an award set aside in the state where it was made may be refused enforceability under Art V (1) (e) of the NYC. This practically meant that if the setting aside procedure before the courts where the award was made allowed for a review on merits, the enforcement court might refuse recognition of an award previously set aside on grounds of merits. The UNCITRAL Model law first adopted in 1985 made sure that the grounds for setting aside of the award in its Art 34 are aligned with the grounds for refusal of enforcement in Art V NYC. Now in 85 states, and in total of 118 jurisdictions the grounds for setting aside are aligned with the NYC and they both do not allow for a review of the award on the merits (UNCITRAL Model Law Status Table 2023).
The states that adopted the UNCITRAL Model Law or a similar approach to it, are usually called arbitration friendly and the less the possibility of the court to interfere in the arbitral procedures, the more modern the legislation appears in the eyes of the arbitration community. Therefore, it is surprising that the Section 69 of the English Arbitration Act of 1996 still contains a right to appeal against an arbitral award. However, it does have a very limited success rate, which can be traced back to the limitations of the appeal to questions of the applicable law and if the applicable law was English law and only if the parties have not excluded the right to appeal either expressly or by choosing a set of rules which exclude appeal (Platt 2013).
Still, commentators consider it to be a major flow of the NYC, that enforcement may be refused to an award already set aside, because the court in the setting aside procedure may annul the award based on some local particularities or even conduct a review on the merits, which is considered to be internationally unacceptable (Paulsson 1999, p. 24). One of the major concerns about the setting aside and enforcement proceedings is that parties may rely on the ground of public policy to make the courts review the arbitral decision on merits. It is true that both Art V (2) (b) of the NYC and Art 34 (2) (b) (ii) state that the enforcement may be refused/set aside respectively on the ground of public policy. But there is a very arbitration friendly declining trend of courts willing to set aside/refuse enforcement of arbitral awards on this ground, unless the violation of public policy is of some larger gravity.
That is why legislators went even a step further and allowed the parties to agree on explicit waivers of setting aside against the arbitral award in advance, before the dispute arose. The Swiss legislator has done so in Art 192 of the Private International Law Act for all cases in which “neither party has a domicile, a place of habitual residence, or a place of business in Switzerland”. Similar approach has later been followed in Belgium (Art 1718 of the Belgian Judicial Code) and Sweden (Art 51 of the Swedish Arbitration Act) and France went beyond the Swiss example and grants the right of a waiver even for parties seated in France (1522 of the French Code of Civil Procedure). This caused a further debate if a waiver of the right to set aside would automatically mean a waiver to object to enforcement of foreign awards under the NYC and if such waiver could be read from the fact that a party did not use its right to set aside the award. The German Supreme Court decided in 2010 that a party failing to file for setting aside the award is not precluded from an objection to enforcement under the NYC (III ZB 100/09, 2010). In the view of the German Supreme Court relying on the prohibition of contradictory behavior (venire contra factum proprium) such waiver may only be interpreted if the respondents’ behavior made claimant justifiably assume that Respondent would not later object to enforcement of the award on those grounds (Solomon 2017, p. 345). In France, the legislator specifically regulated under Art 1522 Code of Civil Procedure, that a waiver of the right to set aside the award does not mean a waiver of the right to object to the enforcement. In the case parties explicitly waive their right to object to enforcement, according to the Canadian Supreme Court of British Columbia such waiver is valid (2004).
Considering the far-reaching effect of a waiver to all grounds of objection to enforceability, many views in the literature suggest that they shall only be permitted after the party becomes aware of the defects during the arbitration proceedings (Borris and Hennecke 2019). However, many states such as Argentina, Australia, China, Ireland, Macau, Malaysia, Paraguay, Singapore, and Uruguay do allow waivers of all grounds of objection to enforceability in advance (Bermann 2017).
The possibility to waive the claim to set the arbitral award aside, has added additional fuel in the developing theory of delocalized (seatless) arbitration, that is based on the idea that arbitrators do not derive their power from the country of seat of arbitration, but from the community of legal orders which are prepared to recognize and enforce the award (Gaillard and Savage 1999). Insofar, according to the theory of delocalized arbitration any review of awards issued in international arbitration may be only conducted based on transnational standards and the arbitrators should enjoy an even greater discretion than already granted by the UNCITRAL Model Law and NYC (Mistelis 2013).
Finally, Art VII NYC allows for the courts to enforce the award even if it were rendered unenforceable under the NYC, if there is a more favorable bilateral or multilateral treaty applicable to it, or simply the law regulating enforcement of foreign arbitral awards in country of enforcement would allow for enforceability of that award.
When Is a Court’s Review of the Applicable Law Still Possible?
The NYC and UNCITRAL Model Law regimes have successfully eliminated almost any review on merits. It is, however, still possible to review a foreign award on merits based on the public policy exceptions or in case arbitrators exceed their authority provided by both, the NYC and the UNCITRAL Model Law. There is a procedural difference between the two grounds that the excess of authority by arbitrators under Art 34 (2)(a)(iii) UNICTRAL Model law and Art V (1)(c) of the NYC needs to be proven by the party claiming it, while public policy is to be examined by the court on its own motion. However, while both grounds for review are formulated widely and may apply to a variety of situations, with regards to the review of the way how the arbitrators reached the applicable law and applied it, both grounds may be used only in exceptional cases of violations of certain gravity (Otto and Elwan 2010). A relatively clear example of excess of powers by the tribunal is given when the parties have chosen the law explicitly and the arbitrators fail to apply it (Silbermann and Ferrari 2011, p. 316). However, even in cases of explicitly chosen law courts have often been reluctant to set aside/non-enforce the award, unless the chosen law has been completely disregarded by the arbitrators. If the arbitrators have taken the chosen law in consideration but decided that it does not apply to the particular issue at hand, this would not be sufficient for a review on the applicable law (High Court of Hong Kong, 2009). In some states it constitutes an additional ground for setting aside of the awards if the tribunal excludes the application of rules chosen by the parties to apply to the subject matter of the dispute (Art. 50 (1)(d) of the Arbitration Law of Saudi Arabia). In any case, the review would be limited to the choice of the applicable law, excluding the way the law was interpreted or applied (UNCITRAL digest 2012, p. 157, para. 114). This further proves that this ground could not be used for cases in which the law was not chosen explicitly, even when it is unclear how the arbitrators reached the conclusion on the applicable law.
Conversely, the review on the public policy is not directed toward the process of finding the correct applicable law nor its interpretation or application, but rather toward the effects the final award has on the fundamental principles and values of the state where the motion to set-aside or enforce the award has been initiated. A good example is the recent decision of a German court to partially enforce the award on the main debt, but not to enforce the punitive interest rate for delayed payment agreed in the contract which amounted to 180% annually and is thus considered to violate German public policy (Appellate Court Berlin, 2019). Similar approach has been taken in the Middle East in many decisions when one part of the award is not recognized when it provides for payment of interest that violates Sharia, but it is declared enforceable in all other parts (Bhatti 2018).
Some states provide for additional grounds for review on merits, the most prominent being the review based on manifest disregard of law in the US. This concept is purely judicial born and heavily discussed, but overall has not contributed to any additional review which would not have been possible under the statutory grounds based on the NYC (Tompkins 2018). Its increased use has been confirmed in discrimination cases in labor law based on mandatory arbitration agreements (LeRoy 2011), but the antidiscrimination principles as a constitutional principle should have allowed for a review under public policy in such cases. In general, there seems to be a stronger openness of the courts to review the award on merits in domestic arbitration, while in international arbitration due to the NYC and the UNCITRAL Model law it is understood that such review would not be considered as arbitration friendly. It also may have far reaching consequences to the attractiveness of that state to be chosen as the seat of arbitration in future.
Survey Results on the Importance of Applicable Law in International Arbitration
There are no surveys that directly address the question to which extent it matters to clients that the applicable law was correctly determined. However, some conclusions may be drawn from questions related to expertise of arbitrators, usually disputed matters and reasons for choosing arbitration as a dispute resolution mechanism. For this purpose, we will look at four different surveys on international arbitration. Two of them are general surveys on the choice of arbitration as a dispute resolution mechanism (Nalmark and Keer 2002; Queen Mary University Survey 2013), and two more recent surveys specific for construction arbitration (Queen Mary University Survey 2019) and energy arbitration (Queen Mary University Survey 2022). According to the Queen Mary Survey of 2013 that focused on corporate counsels from the industry sector, international commercial arbitration is the preferred dispute resolution method for construction disputes with 68% and in the energy sector with 56% (Queen Mary University Survey 2013). The common reasons for choosing arbitration in both sectors are neutrality and expertise of arbitrators, while confidentiality and flexibility are additional important factors in the energy sector, but not as important in the construction sector. At the same time, costs and efficiency are considered to be the least attractive features of arbitration and this is despite the fact that there is no appeal in arbitration (Queen Mary University Survey 2013). Simply an arbitral procedure often lasting up to two years, are in some countries with efficient judiciary longer than court proceedings together with the appeal (Greenwood 2011). Any widening of the possibilities of the appeal or setting aside to the merits of the award would only add to the efficiency concerns and make arbitration even less attractive. It seems that the trust placed in the expertise of arbitrators as one of main reasons for choosing arbitration, overrides the interest for any kind of review of the award.
While the Queen Mary Survey of 2013 displays the need for more efficiency, it did not ask the main question of this paper: to which extent the determination of applicable law matters. The only question in this survey which partly relates to it, was about the importance of arbitrator’s expertise, and participating companies rated it as by far more important than efficiency, meaning speed and cost together (Queen Mary University Survey 2013). Another survey focused on attorneys and clients asked the question more directly and contrasted a fair and just result to speed and costs and the participants rated a fair and just outcome more than twice more important than efficiency (Nalmark and Keer 2002).
The Queen Mary Survey of 2019 focused specifically on construction disputes unsurprisingly shows that 27% of the respondents consider greater use of nonlawyer arbitrators as a defining characteristic of construction arbitration. When asked about the most important characteristic of an arbitrator in construction arbitration, familiarity with the applicable law came fifth with 44%, after the experience in construction arbitration (a balance of legal and technical expertise (60%) and construction industry experience (57%) and arbitrators’ availability (46%). While these results do not answer the question of how important it is that an arbitrator has the expertise to correctly determine the applicable law, they at least showcase the importance of correct application of law once its applicability is determined. At the same, when looking at the reasons for choosing a particular seat in construction arbitration, easy enforcement, limited court intervention, and reduced grounds of review are three of the top four most important characteristics. Again, the trust in the expertise of the arbitrators in the applicable law seems to override the interest in review.
Within the surveys specifically related to the choice of arbitration as a dispute resolution mechanism in construction and energy sector, conclusions may be drawn from questions about the most common causes of the dispute in these areas. Such causes may be linked to possible complex questions of applicable law as well as the expertise clients expect from arbitrators in such disputes.
In the most recent survey on energy arbitration, one of the most common reasons for disputes mentioned are price volatility of raw materials, government policy changes and sanctions, causing suspensions and terminations with parties invoking hardship and force majeure (Queen Mary University Survey 2022). Many sanctions and policy changes will be related to Russia and raise complex questions of their applicability or impact to disputes even where no Russian parties are involved, or Russian law is not chosen as applicable (Queen Mary University Survey 2022). The survey further highlights concerns about increased regulation of the energy sector especially with regards to the environmental policy with rising insecurity about their applicability to commercial contracts (Queen Mary University Survey 2022).
Although the four surveys are not conducted directly on the question of determination of the applicable law, they do reveal relevant results on this issue. While accuracy remains more important than efficiency, it is expected to be achieved by the expertise of the arbitrator without widening the grounds for review. These conflicting principles and expectations will be further discussed as follows.
Conflicting Principles of International Arbitration on the Review of the Applicable Law
Several conflicting international arbitration principles need consideration on the question of review of the applicable law determined by the arbitrators within the motion to set aside the award or within the objection to enforcement. The most obvious conflict with regards to the possibility of review of arbitral awards on merits is between quality and efficiency, and efficiency consists of both costs and time (Biolek 2019, p. 11). It should not be disputed that the most important characteristic of an arbitral award is not only to be enforceable, but right (Kirby 2014). The lack of review contributes to the efficiency, however there is no qualitative review of the award except for extreme missteps by the tribunal. The primary duty of the arbitrator remains an accurate award, and good time management of the proceedings needs to be done while preserving parties’ interest in correct decision (Park 2010). Kirby with long experience at the ICC, compares the arbitration proceedings to dry cleaning in the US: you cannot have it good, fast and cheap; one of the three characteristics naturally is opposite to the other two (Kirby 2015).
It seems that accuracy in arbitration is expected to come purely from the party autonomy to choose arbitrators who are experts. But party autonomy to choose arbitrators simply cannot be seen as a guarantee of expertise, at least not on issues such as the conflicts of law analysis, which often remain invisible to the parties. Unless we should conclude that parties choosing arbitrators who lack expertise in a particular matter do not deserve any better. While it is self-evident that not every arbitrator can be an expert on all legal and technical aspects of the case, the concern remains if the arbitrator will be driven to pursue accuracy and dig deeper if there is no possibility of review and he or she can get away with a certain degree of superficial analysis. If we follow such reasoning, a review should be allowed at least in cases where party autonomy failed and the arbitral institution had to appoint the arbitrator, because the parties could not agree.
In the arbitration literature there is a general stand against any additional reviews of the arbitral awards and any discussion in that direction is considered to be arbitration unfriendly. Redfern and Hunter see serious disadvantages of any review on merits, arguing that judges should not replace the specifically chosen arbitrators for the dispute, that confidential proceedings become public and further reviews may postpone the due payments and endanger effectiveness (2015, 10:67). Greenberg et al. (2011, p. 416) add other reasons, including that a domestic court may possibly lack the knowledge or understanding of international commercial arbitration or the potential for perceived local bias. In fact, the minimal interference by courts and maximal support for arbitration is a well-established principle in court practice and many courts rely on Art 5 UNCITRAL Model law to argue that no interference into arbitration proceedings shall be done, except when expressly provided by the UNCITRAL Model law (Rayoo 2021).
Another potential clash of principles appears to be in the role of the arbitrators between a purely bureaucratic application of law, as criticized already by Max Weber (Weber 2019), and a freedom of arbitrators to make the best decision, regardless of the law (Ortner and Schuch 2017). But this seems to be a debate between two unreasonable extremes. The arbitration rules require arbitrators to apply the law unless the parties gave them explicitly the power to decide ex aequo et bono. Applying the law does not mean adopting unfair decisions, as legal systems across the globe contain general legal principles that allow taking into account the specifics of the individual case and reaching a fair decision in accordance with the law. If the expertise of the arbitrators is not to reach an accurate decision under the law using their knowledge, education and experience, then what is the expertise about?
Historically one of the main reasons for court interference and review of arbitration awards was the uniform application of law (Born 2020, p. 3633). The confidentiality of the arbitral proceedings with the lack of publication of most arbitral awards is already significantly contributing to the notion of conflicting awards. The recent decision of the High Court of Hong Kong shows how the lack of review may deprive the parties’ legitimate expectations on the interpretation of the law (W v AW [2021] HKCFI 1707). In two parallel arbitral proceedings between the same parties, two different arbitral tribunals with one common arbitrator nominated by the same party reached unanimous and fully opposite decisions on the same issue. Namely, in one proceeding where the award was issued in March 2020, the counterclaim was about the question if one of the parties made a misrepresentation as to its shareholding and in the award, arbitrators unanimously found no such misrepresentation. The same question was asked in the claim in the parallel proceeding, and in an award issued four months later in July 2020 arbitrators unanimously found that misrepresentation took place (Yang et al. 2021).
The Hong Kong Court had to decide on the security for costs requested by the party winning the first award, when the losing party of the first award objected to enforcement and asked for the annulment of the first award. The court highlighted that:
1.
The common arbitrator must have been aware of the findings in award 1, yet he did not explain in award 2 why the findings on the same facts were different;
2.
Having submitted its dispute to determination by tribunal 2 and having informed it of the concurrent arbitration 1, W was entitled to expect tribunal 2 to deal with the question of issue estoppel;
3.
The common arbitrator should have invited submissions from both W and AW as soon as he became aware of the findings in award 1, this would have allowed tribunal 2 to determine whether they were bound by issue estoppel; and
4.
Confidentiality of award 1 was no excuse for the common arbitrator (Yang et al. 2021). The Court held that the second arbitral award is manifestly invalid based on estoppel as part of the public policy, as such contradicting decisions are violating fairness and due process (W v AW [2021] HKCFI 1707).
One of the awards is not accurate and still the possibility for the court to review arose only because there was one common arbitrator in both panels and both decisions were unanimous. It is common sense that there are arbitrators who make some mistakes, and these two conflicting awards only show what is common sense. But the current understanding of the limited review of arbitral awards puts the threshold so high that even obvious mistakes may hardly ever be challenged. In the following the argument will be made that a review of mistakes in determination of the applicable law should be allowed.
Arbitrators Discretion to Determine the Applicable Law and Why It Matters
While historically it was important to reduce the interference of courts, because they significantly impaired the effectiveness of the arbitral proceedings, today the circumstances allow for a fresh debate. As the specific topic of this paper is not the general debate on the review on merits, but solely the determination of the applicable law, there are several arguments why a review on the applicable law should be allowed.
First, the determination of applicable law is usually provided for by the institutional rules and the violation of such rules is more procedural in nature. A procedural review is more inherent to the NY Convention and UNCITRAL Model law than a review on the merits. Jo-Mei Ma has made an analysis of 115 legislative and arbitral institutional rules and has identified the four most common approaches to the determination of the applicable law absent a choice of law: (1) an indirect approach where the law is determined by choice of law rules selected by the arbitral tribunal (also envisaged by Article 28(2) UNCITRAL Model Law); (2) the direct formulation of a choice of law rule considered to be appropriate by the arbitral tribunal (e.g., at Article 35(1) UNCITRAL Rules); (3) the direct application of the law which is mostly connected to the dispute; and (4) the direct choice of (law or) rules of law that the arbitral tribunal considers to be appropriate (Jo-Mei Ma 2015). The analysis shows that already the arbitration rules and laws give huge discretion to the arbitral tribunal to find the applicable law. Only the first option under UNCITRAL Model law truly requires the tribunals to apply conflict rules, under all other options the tribunals may also just broadly rely on arguments why they consider a particular law to be the most appropriate or to have the closest connection. This is very different before courts, where even a choice of law by the parties is followed only under scrutiny by the judges (Meskic et al. 2022) Therefore, there is no basis for the arbitrators to ask for an even broader discretion to decide on the applicable law without any arguments.
Secondly, finding a proper applicable law in a cross-border dispute may not be that easy. We have a rather strong opinion that applying proper conflict rules is the right way to determine the applicable law. However, anyone with experience in international arbitration would acknowledge that differently than before courts, the identification of proper conflict rules is much more diverse and there is no one size fits all solution. Insofar, using arguments to determine the closest connection or constructing its own conflict rule inspired by the various national laws or international instruments closely related to the case are all solutions which may be proper in a concrete case. While relying on expertise of arbitrators to use this huge discretion may lead to excellent results, it may also be grossly unjust.
Most importantly, the applicable law matters. Now, to make the problem more precise, let us assume a case in which parties have chosen a neutral third state law to govern their construction contract concluded under FIDIC Red Book, whereas the Works are to be performed in the state where one of the parties is situated. This naturally raises the issue of interplay between FIDIC Forms, and the law of the country agreed between the parties, as well as mandatory laws in the countries where the Works are performed, that shall have to be applied irrespective of the agreement of the parties regarding the applicable law. A simple example is a situation in which a right to terminate the contract under FIDIC Forms potentially violates a mandatory law of the state where the works are performed (Gagula and Meskic 2020). The question if such provision of the national law of the state not chosen by the parties may be applied, is a question if the provision may be qualified as an overriding mandatory provision and it requires a conflicts of laws analysis (Silbermann and Ferrari 2011). In contracts related to the energy sector, the weaker party may claim that several contractual clauses were agreed upon based on the abuse of the monopoly position. May the arbitrators apply the competition law of the states of the parties which would invalidate the said clauses or are the arbitrators limited by the chosen law that would uphold the validity of the contract? Let us now think about the difference in solution for both of these cases if no law had been agreed upon. We can agree that the outcome of the case will very much depend on the question of the applicable law. Hayward lists twenty most significant contract law problems whose solution depends on the applicable law including the form of the contract, application of the good faith principle, claims for specific performance, claims for non-disclosure, claims for punitive damages etc (Hayward 2017, p. 34).
Finally, not all arbitrators are good conflict lawyers. One would expect that international arbitrators naturally have expertise in conflicts of laws as the cases always include a cross-border issue. But the truth is that arbitrators are often specialist in certain areas of law which may be very relevant to the case, but conflict of laws is simply not one of them. One of the main reasons why arbitration is so popular as a dispute resolution method in the construction and energy sector is the possibility to choose experts as arbitrators who are not lawyers (Queen Mary University Survey 2019, 2022). If the whole idea of broad arbitrators’ discretion and minimal courts’ interference is based on presumption of expertise, should a lack of expertise in an area not anticipated by the parties when choosing the arbitrators, trigger the possibility of review? If the answer is in the affirmative, conflicts of laws would presumably be high on the list of questions often overlooked by the parties.
How to Make the Applicable Law Relevant in International Commercial Arbitration?
The relevance of law and accurate decisions based on law is something that should be inherent to arbitration in each case, unless the parties gave arbitral tribunal the power to decide ex aequo et bono. Determining the applicable law arbitrarily is a far greater mistake than a wrong application of the correct law. Simply the parties did not empower the arbitrators to decide regardless of the law. Reaching the correct conclusion on which law to apply without proper analysis is of course possible, but cannot serve as a role model and does not reflect the expertise the arbitrator is paid for. Applying the incorrect law means that the arbitrator completely missed the state whose law he was obliged to apply to the case. Of course, the paper does not disregard cases in which arbitrators by applying the law of the wrong state reach a similar result, but this is random because it just so happens that the different states regulate the situations in a similar way. A safe way for the arbitrators to align their conflict of laws conclusions with parties’ expectations is to make sure that the parties are heard on the matter, especially if parties at least impliedly seem to base their submission on different laws (Meskic and Gagula 2020).
Some arbitrators compare the substantive laws of the different states in question and check the effects these laws would have on the outcome of the case before they determine how important the conflict of law analysis is. Such analysis is conducted to avoid so called false conflicts, where the outcome would be the same regardless of the applicable law (Hayward 2017, p. 19). And this is fair, because it is an analysis based on law, as long as it complies with the applicable arbitration rules. The question is only do the arbitrators when applying the method of comparing the substantive laws of all states in question really take the time to go in depth: do they analyze what would be their decision on the case based on the laws of all of the states in question in all details, or do they just make this decision based on a prima facie analysis, simply by reading the most important provisions for the case. The devil will usually be in the detail, e.g., is the interest rate for delay equal, and what about statute of limitations for various claims, available remedies, mandatory provisions, and public law regulations, are they really all the same?
There is no other way to make the applicable law relevant, but to allow some kind of review of the manner the applicable law was determined. The question is how this may be done without endangering confidentiality and efficiency if it is possible at all. And if it is not possible, in which cases is the need for accuracy of the award more important than confidentiality and efficiency?
One of the milder options is a wider introduction of awards scrutiny to arbitral institutions. The corrections of the awards by the arbitral institution itself before the award is even sent to the parties avoids greater mistakes, preserves confidentiality and time, but adds to the costs. It is true that the scrutiny procedure delays the issuance of the award in average for 22 days (Flecke-Giammarco 2014, p. 71) but this period needs to be contrasted with the delay the award may face in the enforcement or annulment procedure if the mistakes had not been discovered. Examples show that ICC’s scrutiny procedure under Art 33 ICC Rules sometimes prevents gross mistakes such as ignoring a contractual cap for consequential damages and awarding millions of dollars in consequential damages by pure negligence (Kirby 2014, p. 481). The ICC Court is often frustrated with the lack of reasoning on the applicable law, and this part of the scrutiny process gives rise to most difficulties in practice (Webster and Bühler 2018, p. 548). The statistics of the need for scrutiny or any other type of review is rather alarming. Based on the 2020 ICC statistics only four awards passed the scrutiny process without any comments which is below 1% of all the awards scrutinized in 2020, whereas 7% or 47 of them were rejected by the Court and sent for further considerations by the tribunal (ICC Dispute Resolution 2020). Of course, some of the awards would receive comments on minor formal points. But potentially there is a surprisingly high percentage of awards which would possibly not pass the test of an appeal procedure. This is worrisome considering that the main reason for the parties to choose arbitration is the expertise of the arbitrators. Of course, we could argue that the judges in the appeal procedure before courts would not have the level of expertise the ICC Court does and possibly many mistakes would remain undiscovered, but nevertheless the accuracy of decisions remains an issue. It would be very interesting to know the percentage of decisions that received comments on the way the applicable law was determined.
It is surprising that the ICC example of a scrutiny procedures has not been followed by too many other major arbitral institutions. Especially considering that ICC is the most selected arbitral institution for many years now, and one of the main reasons is its reputation and high level of administration, including pro-activeness (Queen Mary University Survey 2018). By today some other arbitral institutions certainly developed the capacity to do the scrutiny, and of course they may introduce a different level of interference with the autonomy of the arbitral tribunal. The main example of an institution that did, at least to some extent, follow the ICC example is the Singapore International Arbitration Centre (SIAC) already in its reform in 2007. The scrutiny procedure of 32 (3) SIAC Rules is formulated more lightly than the one under ICC rules, as the Registrar makes suggestions with regards to the form and may draw attention to issues of substance, without taking the liberty from the tribunal to decide the dispute. However, in practice the process is stricter as the Registrar may return the award to the tribunal several times before it is satisfied with the changes made (Choong et al. 2018). Further, the review includes possible inconsistencies with the applicable law (Choong et al. 2018).
There are further examples of newly introduced scrutiny procedures, which confirm the trend and influence of the ICC, but all of them are less strict than the ICC. One example is the German Arbitration Institute (DIS) that with its 2018 reform introduced a limited review of the arbitral awards in art 39 (3) of the DIS Rules. This scrutiny light possibility for the DIS stays short of the ICC scrutiny, as it is limited to the form, whereas the arbitrators remain solely responsible for the content. All other suggestions, for example with regards to gross mistakes on the substance, would not be mandatory for the tribunal to accept. The newly introduced scrutiny under DIS Rules is inspired by the ICC, but even more so by the Danish Arbitration Rules (Happ 2020). Simply the DIS does not have the capacity like the ICC to make a full review of the substance and continues to receive only a shadow file and thus cannot conduct a full review (Happ 2020). The role model provision in Article 43 of the Arbitration Rules of the Danish Institute of Arbitration states that the Secretariat may draw the tribunal’s attention to ‘other issues, including issues of importance regarding the award’s validity, recognition and enforcement’, but the responsibility for the content remains with the tribunal. Very similar wording now may also be found in Art 23 of the 2018 Arbitration rules of the Common Court of Justice and Arbitration, which is part of the Organization for the Harmonization of Business Law in Africa, OHADA (Douajni and Leboulanger 2021). All three scrutiny light procedures under German, Danish and OHADA Rules would most likely not include issues of applicable law, unless the institution would ‘prima facie’ be able to identify the mistake, for example if the chosen law is completely ignored.
An interesting example is provided by the Chambers of Foreign Trade in Bulgaria, where the scrutiny procedure is introduced in Art. 37, Para. 4 of the Rules of the Court of Arbitration at the Bulgarian Chamber of Commerce and Industry (Court of Arbitration at the BCCI), but it is limited to cases where the award is drafted by arbitrators who are not on the lists of arbitrators of the Court of Arbitration at BCCI (Zahariev 2015). Obviously, the Court of Arbitration at the BCCI considers that it can rely on the expertise of the arbitrators on its list but does not trust the party autonomy of the parties when the chosen arbitrators is not on its list. Regardless how critical we may see this assumption, it confirms the point raised in this paper, that the need for review is directly linked to the trust in the expertise of the arbitrators.
Any review on the determination of applicable law by courts, would face the criticism of violating confidentiality, causing delay, and adding costs. If we blindly follow this argument, accuracy should be sacrificed, because parties agreed to it. But does this argument still apply in cases of a sole arbitrator when parties could not agree, and the arbitral institution appointed the sole arbitrator? And can we truly speak about party autonomy when the parties for various reasons cannot agree on the presiding arbitrator, so they keep objecting to each other’s proposals and the finally chosen presiding was only their seventh choice or even had to be appointed by the arbitral institution? How much do parties truly know about arbitrators’ expertise if his previous arbitrations are protected by confidentiality? It may be that each of the awards rendered by a particular arbitrator are constantly rejected in the scrutiny procedure before the ICC, and yet nobody would know except for a small circle or arbitrators working with him/her on the same panel. Some recent initiatives, such as the arbitrator intelligence (Rogers and Brodlija 2022), are trying to provide more information and break the closed, confidential circles of arbitrators’ selection. In the survey of 2018 80% of the participants expressed the wish to provide feedback about their arbitrators after the award is rendered (Queen Mary University Survey 2018).
Another rather soft solution is simply to interpret the excess of powers as a ground for annulment and nonenforcement of arbitral awards in a broader way, so that it also covers the questions of applicable law. The way the applicable law is to be determined is regulated by arbitration rules, in both institutional and ad hoc arbitration. And there is a procedure to be followed by the arbitrators, which gives them broader discretion to determine the applicable law than this is the case before courts. But it is not unlimited. Although the outcome of the conflicts of law analysis will be the determination of law applicable to the merits, the process of determining the applicable law usually had not much to do with the decision on merits. In civil law countries referral to a foreign law is with regards to its substantive law outcome a jump into the dark, the German term Sprung ins Dunkle is most commonly used to describe the process (Raape 1961; Meskic and Djordjevic 2018). Even if arbitrators decide to analyze the substantive laws of the countries in question before determining the applicable law, this is done only for the purpose of establishing if there is any difference between them and consequently, if there is need to do a conflict of laws analysis. It is fair to say that from the perspective of a potential review of the applicable law, the review would be reduced to the process of determining the applicable law and the application of the arbitration (procedural) rules and would not qualify as a review on merits. If arbitrators do not make a conflict of law analysis, they exceed their powers under the applicable arbitration rules.
Conclusion
The contribution of the NY convention and later the UNCITRAL Model Law to the development of arbitration cannot be measured. The principle of minimal interference by courts was an essential element of this growth and necessary at the time. But both the NY Convention and the UNCITRAL Model Law are living instruments. What we know in the meantime is that pure reliance on the expertise of arbitrators is not sufficient to guaranty basic accuracy. Arbitrators make mistakes. Some of them are violating public policy and the parties in such cases get the procedural protection they need under the NYC or the national legislation following the UNCITRAL Model law. In case where the mistake is not of such gravity to violate the public policy, a possibility for review is given if the arbitrators completely ignore an explicitly chosen law. In all other cases, it depends on the court’s interpretation of arbitrator’s excess of powers, if a review would be available and it is usually limited to cases of gross violations of arbitral rules and laws.
The ICC statistics on its scrutiny procedure allow some insights on mistakes on merits in commercial arbitration and they point to a problem of a gap in procedural rights against such mistakes. The arbitral tribunals need some supervision over their decisions on the merits. The question of the applicable law raised in this paper should be a rather easy fix compared to real issues on law interpretation and application of laws to the facts of the case. The conflicts of law analysis is quite easy to be supervised, it is a rather schematized procedure following the conflict rules to the applicable law. Arbitration rules usually give broad discretion to the arbitrators on the procedure to determine the applicable law, but this discretion is not unlimited. The revision of the determination of the applicable law should be limited to the question it the applicable arbitration rules and law have been violated or not. This will be easier to establish when the parties have chosen the law. In such cases it should simply be reviewed if the arbitrators have respected the choice of law or reasoned why the choice of law has not been respected, e.g., in case of overriding mandatory rules of a third state. When the law has not be chosen by the parties, the arbitration rules give guidance on how to determine the applicable law. In such cases, the review should be limited to the question if there is any conflict of laws analysis and does it reveal how the arbitrators reached their decision on the applicable law. Should there be no conflict of laws analysis, there should be at least some reasoning why the arbitrators did not consider it to be relevant. Only in case of serious and obvious violations of the applicable arbitration rules and laws on how to determine the applicable law should a reasoned decision of the arbitrators be considered to exceed the powers and open the door for annulment of the award.
Data Availability Statement
All data, models, and code generated or used during the study appear in the published article.
Acknowledgments
The authors would like to acknowledge the support of the Prince Sultan University for paying the Article Processing Charges (APC) of this publication. This work was supported by the Governance and Policy Design Research Lab (GPDRL) of Prince Sultan University.
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Journal of Legal Affairs and Dispute Resolution in Engineering and Construction
Volume 16 • Issue 1 • February 2024
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Received: Jan 8, 2023
Accepted: Aug 9, 2023
Published online: Sep 26, 2023
Published in print: Feb 1, 2024
Discussion open until: Feb 26, 2024
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