Conflict of Laws and Arbitral Discretion: The Closest Connection Test

Hardcover | February 18, 2017

byBenjamin Hayward

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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, theprevailing 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 theircontract, 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, anddrawing 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 RomeConvention rule as the ideal basis for law reform in this area of arbitral procedure.

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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, theprevailing approach in arbitration is to af...

Dr Benjamin Hayward is a Lecturer in the Deakin Law School at Deakin University in Melbourne, Australia. 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 an...
Format:HardcoverDimensions:352 pagesPublished:February 18, 2017Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0198787448

ISBN - 13:9780198787440

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Table of Contents

1. Introduction and Context2. The Current Regulation of Conflicts of Laws in International Commercial Arbitration3. Identified Issues in the Current Regulatory Regime4. A Proposed Solution: A Bright-Line Test5. A Proposed Bright-Line Test: The Closest Connection Test6. A Proposed Closest Connection Test: The Modified Art. 4 'Rome Convention' Rule7. Conclusion