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The Application of Substantive Law by International Arbitrators examines issues that can arise when international arbitrators apply the rules of a national legal system. During arbitral proceedings, parties expect arbitrators to apply the law they have chosen, which is not necessarily their own. Furthermore, arbitrators are often faced with complex questions such as:
How should the contents of the applicable law be proved by the parties?
Are arbitrators free to ascertain the applicable rules of law independently from the parties?
Are arbitrators bound by judicial precedents established by the courts of the country the law of which applies?
How should arbitrators deal with possible contradictions between the applicable law and the clauses agreed by the parties in their contract?
Arbitrators will have to find the right balance between these conflicting needs on a case to case basis, taking into account all the relevant circumstances.
Dossier XI of the ICC Institute of World Business Law will give you a thorough picture of the practical issues raised when there is contradiction between the applicable law and the needs of international business. The ICC Institute of World Business Law brings together the finest legal minds to strengthen links between international business practitioners and the legal profession.
The Institute’s ‘Dossiers’ is a series that has gained international prestige. These Dossiers are the outcome of the Institute’s annual meetings, where experts from around the globe come together to discuss salient issues of international commercial law and arbitration.
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Dossier XI of the ICC Institute of World Business Law
FOREWORD by Yves Derains
INTRODUCTION by Fabio Bortolotti
1) Bernard Audit: Choice of the Applicable Law by the Parties
2) Antonias Dimolitsa: The Raising Ex Officio of New Issues of Law
3) Phillip Capper: “Proving” the Contents of the Applicable Substantive Law(s)
4) William W. Park: The Predictability Paradox
5) Klaus Peter Begrer: To What Extent Should Arbitrators Respect Domestic Case Law?
6) Horacio Grigear Naón: Can Arbitrators Deal With Hierarchical Conflicts of Laws
7) François Perret: Resolving Conflicts between Contractual Clauses and Specific Rules of the Governing Law
8) Matthieu de Boisséson: Substantive Applicable Law in International Arbitration: an Arbitrator’s Perspective
9) Antonio Crivellaro: The Interpretative Law-Making of Investment Tribunals
10) Tarek Fouad A. Riad: How to Comply with the Applicable Law while Taking Into Account the Expectations of the Parties and the Needs of International Commerce
11) Pierre Mayer: Conclusion
Table of cases
ICC Tools for Dispute Resolution
ICC at a glance
Bernard Audit Professor Emeritus of the University of Panthéon-Assas (Paris 2), France
Berger Professor of Law, University of Cologne, Germany; President, DIS (Deutsche Institution für
Partner, Buffa, Bortolotti & Mathis, Italy; Chairman, ICC Commission on Commercial Law and Practice; Council Member, ICC Institute of World Business Law
Matthieu de Boisséson Partner, Linklaters LLP, France; Member, ICC Institute of World Business Law
Partner, Head of International Arbitration, White & Case LLP, United Kingdom; Member, ICC Institute of World Business Law
Antonio Crivellaro of Counsel, Bonelli Erede Pappalardo, Italy; Council Member, ICC Institute of World Business Law
Yves Derains Founding Partner, Derains & Gharavi, France; Former Secretary General, ICC Institute of World Business Law
Founding Partner, Antonias Dimolitsa & Associates, Greece; Vice-Chair, ICC Institute of World Business Law
Horacio Grigera Naón Independent Arbitrator, United States; Former Secretary General, ICC International Court of Arbitration; Council Member, ICC Institute of World Business Law
Partner, Dechert LLP, France; Professor Emeritus of the University of Paris I; Council Member, ICC Institute of World Business Law
William Park Professor of Law, Boston University; President, London Court of International Arbitration
Attorney, Switzerland; Professor Emeritus of Law, University of Geneva; Council Member, ICC Institute of World Business Law
Tarek Fouad A. Riad
Managing Partner, Kosheri, Rashed & Riad, Egypt; Chairman of the Executive Committee, Dubai International Arbitration Centre; Council Member, ICC Institute of World Business Law
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