International Commercial Dispute Resolution

Answer ONE of the following questions

1. If the parties have not chosen the applicable law to the contract, the arbitral tribunal will decide which law to apply to solve the dispute. Arbitral tribunals typically have more leeway than courts in deciding which law to apply. They can, for instance, apply non-state rules as the substantive law to the dispute. Critically analyse how arbitral tribunals choose the applicable law to a contract and the role non-state rules have in this decision process.

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2. An arbitral award can be refused enforcement if the subject matter of the contract was not arbitrable or if one of the parties lacked capacity to enter into an arbitral agreement. Critically analyse the role of objective and subjective arbitrability in international commercial arbitration with reference to one or two domestic legal systems of your choice.

3. Critically discuss to what extent party autonomy allows the detachment of arbitration from domestic legal systems, and the advantages and disadvantages of such detachment. In your answer, refer to relevant international legal instruments and a domestic legal system of your choice.

4. ‘The losing party, especially in an international arbitration, has plenty of room for manoeuvre: it can simply refuse to carry out the award.’

Critically examine whether there is any justification to this statement.

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