A Utopia or Reality: Possibility of Using the Proper Law of Contract throughout an International Commercial Arbitration Claim

Abstract

International commercial arbitration has become the most favoured method of dispute resolution in the international arena since it has the capability of providing a win-win situation for the parties involved in the dispute which is not available under ordinary litigation. However, since arbitration is a matter of choice for the parties, the concept of party autonomy sometimes makes the arbitration process a difficult one to be conducted with the vigor that is found under court proceedings. One main reason for this can be seen in the multiplicity of laws that are involved in settling the dispute from the agreement to arbitrate to enforcing the claim. This article therefore looks at the possibility of adopting the proper law of contract to be applied throughout the process of arbitration in settling the dispute. Using the doctrinal approach by using international legal instruments, statues and decided case law as primary sources and using scholarly articles and books written on the subject, the results have shown that, while being highly optimistic, such an endeavour is not still possible since there is no single international legal document which deals with the whole process of arbitration and in such an absence, it seems difficult at the moment to use a single system of law throughout the arbitration process. Nevertheless, the article makes suggestions as to how such a mechanism could be implemented and the possible prospects and challenges in making this utopia a reality.