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Arbitration is the dispute resolution method of choice in international commerce, but it rests on a complex legal foundation. In many international commercial contracts, the parties will choose the law governing any future disputes. However, where the parties do not choose a governing law, the prevailing approach in arbitration is to afford arbitrators broad and largely unfettered discretion to choose the law considered most appropriate or most applicable. The uncertainty resulting from this discretion potentially affects the parties' rights and obligations, the performance of their contract, the presentation of their cases, and negotiations undertaken to settle their disputes.
In this text, Dr Benjamin Hayward critically reviews the prevailing approach to the conflict of laws in international commercial arbitration. The text adopts a focused and detail-oriented analysis - being based on a study of more than 130 sets of arbitral laws and rules from around the world, and drawing heavily on arbitral case law. Nevertheless, it remains both practical and accessible, taking as its focus the needs and expectations of commercial parties, who are the ultimate users of international commercial arbitration.
This text identifies the difficulties that result from resolving conflicts of laws through broad and unconstrained arbitral discretions. It establishes that a bright-line test would be a preferable way to resolve arbitral conflicts of laws. Specifically, it recommends a modified Art. 4 Rome Convention rule as the ideal basis for law reform in this area of arbitral procedure.
Inhaltsverzeichnis
- 1: Introduction and Context
- 2: The Current Regulation of Conflicts of Laws in International Commercial Arbitration
- 3: Identified Issues in the Current Regulatory Regime
- 4: A Proposed Solution: A Bright-Line Test
- 5: A Proposed Bright-Line Test: The Closest Connection Test
- 6: A Proposed Closest Connection Test: The Modified Art. 4 'Rome Convention' Rule
- 7: Conclusion
Über den Autor / die Autorin
Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, Monash Business School, at Monash University. Dr Hayward's teaching and research is focused on international commercial law, particularly international commercial arbitration law and the international sale of goods, and he has previously published in both areas. His teaching and research work has been recognized by the receipt of six university awards since 2010. Dr Hayward has presented his work at seminars and conferences both in Australia and internationally and he has a particular interest in the interactions and applications of law in international commercial arbitration.
Zusammenfassung
Arbitration is the dispute resolution method of choice in international commerce, but it rests on a complex legal foundation. In many international commercial contracts, the parties will choose the law governing any future disputes. However, where the parties do not choose a governing law, the prevailing approach in arbitration is to afford arbitrators broad and largely unfettered discretion to choose the law considered most appropriate or most applicable. The uncertainty resulting from this discretion potentially affects the parties' rights and obligations, the performance of their contract, the presentation of their cases, and negotiations undertaken to settle their disputes.
In this text, Dr Benjamin Hayward critically reviews the prevailing approach to the conflict of laws in international commercial arbitration. The text adopts a focused and detail-oriented analysis - being based on a study of more than 130 sets of arbitral laws and rules from around the world, and drawing heavily on arbitral case law. Nevertheless, it remains both practical and accessible, taking as its focus the needs and expectations of commercial parties, who are the ultimate users of international commercial arbitration.
This text identifies the difficulties that result from resolving conflicts of laws through broad and unconstrained arbitral discretions. It establishes that a bright-line test would be a preferable way to resolve arbitral conflicts of laws. Specifically, it recommends a modified Art. 4 Rome Convention rule as the ideal basis for law reform in this area of arbitral procedure.
Zusatztext
Overall, Dr Hayward's book is an original, thoughtful, well-argued and thoroughly-researched exposition of the need to reform the current regime for resolving conflicts of law through a rule inspired by Article 4 of the Rome Convention.
Bericht
Conflict of Laws and Arbitral Discretion: The Closest Connection Test, is an excellent, much-needed, well-written, well- argued book. It provides an illuminating outline of the existing practice of international commercial arbitration and offers a comprehensive argument on how to improve it. The broad community of international arbitration and conflict of laws practitioners and scholars around the world should be thankful Dr. Hayward for that. Sagi Peari, University of Western Australia Law Review
