CIArb AWARD WRITING TECHNIQUES: CHALLENGE ON LEX ARBITRI

​CIArb AWARD WRITING TECHNIQUES: CHALLENGE ON LEX ARBITRI

Party may mount various challenges to derail a hearing and the most often in international arbitration is:
 
Challenge on Lex Arbitri

1. In the Hearing dated [DATE], the Claimant, stated that the seat should be […], so the law governing this arbitration would be the […] law, based on the reason that the […]-convention required that the arbitration should be located in the place the contract was made which was […].
2. The Respondent alleged that the seat should be […] as this is the location of the […].
3. As both parties having disagreed, both said it would be up to the arbitrator to decide and I advised the parties that I would do so and include it as part of my final award in which case, I now do so as the followings:
   1. I am guided that the ‘judicial seat of the arbitration’, which is also the ‘place of arbitration’ where the lex arbitri i.e. the applicable law governing the arbitration, resides.[i]
   2. Having considered the analysis of ‘Choice of Law’ COL, in accordance to the common law positions[ii], the ‘closest and the most real connection’ with the arbitration agreement shall be the seat of the arbitration.[iii]
   3. I am guided by […][iv] that the applicable law in the absence of choice: “To the extent that the law applicable to the contract has not been chosen […], the contract shall be governed by the law of the country with which it is most closely connected[…].”
   4. It does not specifically mention as to the ‘seat’ and the […] is an instrument of general application, it must be applied in all types of legal proceedings in the territory of […], including in arbitration. It does not specifically provide that the arbitration should be located in the place the contract was made which was […] if the characteristic performance cannot be determined i.e. […] is the location of the […], disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.[v]
   5. In this case, parties had agreed to the use of the […] law as the substantive law governing the contract, as it is neutral to the parties and on the same reason, the same can be construed that the ‘judicial seat’ which is the ‘closest and the most real connection’ with the arbitration agreement shall be England.[vi]
4. On such reason and on balance, I FIND AND HOLD THAT, the seat of arbitration is […] and the […] shall be the lex arbitri governing this arbitration.

 
-----------------------------------
[i] Art.20(1)ML, “The parties are free to agree on the place of arbitration.  Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal […]”
[ii] Sulamérica v Enesa Engenharia [2012] EWCA Civ 638
[iii] Kabab-Ji v Kout Food Group [2020] EWCA Civ 6   
[iv] Rome Convention 1980
[v] Art.4(5) Rome Convention 1980
[vi] The use of ‘England’ or ‘England and Wales’ is unlikely to cause any problems as both share one jurisdiction in relation to the administration of justice as the ‘judicial seat’.