Sources of Law in International Commercial Arbitration

In international commercial arbitration, multiple sources of law may come into play, providing
the legal framework for the arbitration proceedings and the resolution of the dispute. Some of the
key sources of law include:

1. Arbitration Agreement: The primary source of law in international arbitration is the

arbitration agreement itself. It governs the parties' consent to arbitrate and sets out the
rules and procedures for the arbitration.

2. National Laws: The laws of the seat of arbitration, also known as the lex arbitri, play a
crucial role. These laws determine the procedural aspects of the arbitration, such as the
arbitrability of the dispute, the formality requirements for the arbitration agreement, and
the recognition and enforcement of the arbitral award.

3. International Conventions and Treaties: Treaties, such as the New York Convention,
play a significant role in the recognition and enforcement of arbitral awards across
national borders. Other conventions, like the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States (ICSID Convention), govern the
resolution of investment disputes.

4. Arbitration Rules: Institutional arbitration rules, such as those of the ICC, LCIA, or
UNCITRAL, are often chosen by the parties to govern the arbitration process. These
rules set out procedures, requirements, and standards for the conduct of the arbitration.

5. Trade Usages: In certain cases, trade usages and customs may be considered as
supplementary sources of law in the absence of explicit agreements.

6. General Principles of Law: Arbitrators may apply general principles of law recognized
by the international community when resolving disputes, especially in situations where
specific rules or laws are silent or insufficient.

7. Public International Law: In some cases, public international law principles may be
relevant, especially when dealing with issues of sovereignty, human rights, or state
immunity.
Resources: Researchers in international commercial arbitration can utilize a wide range of
resources to conduct their studies effectively. Some common resources include:

1. Legal Databases: Access to legal databases, such as Westlaw, LexisNexis, and

HeinOnline, provides a vast collection of legal materials, including statutes, case law,
treaties, and scholarly articles.

2. Arbitration Institutions: Websites of international arbitration institutions, such as the

International Chamber of Commerce (ICC), London Court of International Arbitration
(LCIA), and International Centre for Settlement of Investment Disputes (ICSID), offer
valuable information on their rules, procedures, and past arbitral awards.

3. Academic Journals: Journals specializing in international arbitration and international

law offer in-depth analyses, commentaries, and academic research on various aspects of
the field.

4. Books and Treatises: Comprehensive books and treatises written by leading experts in
international arbitration provide valuable insights into the subject.

5. Arbitration Reports and Journals: Specialized arbitration reports, such as the

International Arbitration Law Review (IALR) and the Journal of International Arbitration
(JIA), offer recent case summaries and commentary.

6. National and International Court Decisions: Decisions from national courts and
international tribunals may provide useful precedents and interpretations of legal
principles.

Scope, Purpose, and Target of International Arbitration Research

The scope, purpose, and target of research in international commercial arbitration may vary
based on the specific context and objectives of the study. Some common scopes and purposes of
research in this field include:

1. Legal Analysis: Conducting legal analysis on specific legal issues in international

arbitration, such as the enforceability of arbitration agreements, the interpretation of
contractual clauses, or the application of specific arbitration rules.
 2. Comparative Studies: Comparing arbitration laws, rules, and practices of different
jurisdictions to identify trends, best practices, and areas for improvement.

3. Empirical Research: Conducting empirical research to gather data on the efficiency,

effectiveness, and perceived fairness of international arbitration processes.

4. Case Studies: Analyzing specific arbitration cases to understand how legal principles are
applied in practice and to extract valuable lessons for future disputes.

5. Policy and Regulatory Analysis: Examining the impact of international arbitration laws
and regulations on international trade, investment, and dispute resolution mechanisms.

6. Academic Inquiry: Contributing to the academic understanding of international

commercial arbitration by exploring theoretical and conceptual aspects of the field.

The target audience of research in international commercial arbitration may include practitioners,
academics, policymakers, international organizations, and arbitration institutions, among others.
The research findings aim to inform decision-making, shape legal practices, and advance the
knowledge and development of international arbitration as a whole.

ARBITRATION AGREEMENTS

The arbitration agreement is a fundamental component of international arbitration. It is a contract

between the parties involved in a dispute, in which they agree to submit their disagreements to
arbitration rather than pursuing litigation in courts. The validity and enforceability of the
arbitration agreement, as well as its drafting, are critical aspects of international arbitration
practice. The enforcement of arbitration agreements is often governed by international
instruments like the New York Convention and UNCITRAL Model Law.

1. Validity and Effect of Arbitration Agreement: For an arbitration agreement to be valid and
enforceable in international arbitration, it must satisfy certain criteria:

 Consent: The parties must voluntarily and unequivocally agree to arbitration. They
should clearly express their intention to resolve disputes through arbitration.

 Formal Requirements: Some jurisdictions may require specific formalities for an

arbitration agreement to be valid. These may include requirements regarding signatures,
 witnesses, or specific language. However, many jurisdictions have adopted a flexible
approach in recognizing the validity of arbitration agreements.

 Capacity: The parties entering into the arbitration agreement must have the legal
capacity to do so. For example, they must not be under duress, undue influence, or
incapacity.

 Scope: The scope of the arbitration agreement should be clear, specifying the types of
disputes covered and the rules governing the arbitration process.

 Separability: Many jurisdictions recognize the principle of separability, which means

that the arbitration agreement is considered separate from the main contract. Thus, even if
the main contract is found to be invalid, the arbitration agreement can remain
enforceable.

2. Drafting of Arbitration Agreements: Drafting a well-crafted arbitration agreement is

essential to avoid disputes over its interpretation and enforceability. Some key considerations in
drafting arbitration agreements include:

 Clear Language: The language used should be unambiguous, leaving no room for
misinterpretation.

 Applicable Law: Specify the law governing the arbitration agreement, especially if the
parties are from different jurisdictions.

 Arbitration Rules: Designate the arbitration rules that will govern the proceedings, such
as those of the ICC, LCIA, or UNCITRAL.

 Number of Arbitrators: Indicate the number of arbitrators and the process for their
appointment.

 Seat of Arbitration: Specify the physical location (seat) of the arbitration. The choice of
seat determines the supervisory courts and the extent of judicial intervention in the
process.

 Language of Arbitration: Determine the language in which the arbitration proceedings

will be conducted.
3. Enforcement of Arbitration Agreements: Enforcement of arbitration agreements is
facilitated by international conventions and model laws, particularly:

 The New York Convention (Convention on the Recognition and Enforcement of

Foreign Arbitral Awards): This convention, adopted in 1958, provides for the
recognition and enforcement of arbitral awards in over 160 countries. It ensures that an
arbitration agreement is enforceable and that the resulting award can be enforced across
borders.

 UNCITRAL Model Law: The United Nations Commission on International Trade Law
(UNCITRAL) developed the Model Law on International Commercial Arbitration to
assist countries in modernizing their arbitration laws. Many countries have incorporated
this model law, or elements of it, into their domestic legislation.

Countries that are parties to the New York Convention or have adopted the UNCITRAL Model
Law are generally more arbitration-friendly, making it easier to enforce arbitration agreements
and resulting awards.

Overall, ensuring a valid and well-drafted arbitration agreement is essential for a successful
international arbitration process. The New York Convention and UNCITRAL Model Law play
crucial roles in facilitating the recognition and enforcement of arbitration agreements,
contributing to the effectiveness of international arbitration as an alternative dispute resolution
mechanism.