Chapter 4 discusses applicable laws and rules as well as various concepts in international arbitration such as delocalization, territoriality, lex arbitri and lex mercatoria. The chapter considers various choice of law issues that arise when parties fail to chose the governing law of the contract or of the arbitration clause or if they do not choose the seat of the arbitration.. Although the arbitrator has a duty to apply the proper law, the application of the laws and rules of an arbitration is a complex process. Arbitrators have broad discretion, which is, however, limited in number of ways such as by mandatory laws, party autonomy, international principles, best practices, and by the duty to try to render an enforceable award. In the book, the author includes insights from a number of international arbitrators and counsel, who tell firsthand about their own experiences of arbitration and their views of best practices. Throughout the book, the principles of arbitration are supported and explained by the practice, providing a concrete approach to this important means of resolving disputes.

Does arbitration permit a self-sufficient contract? To what extent can relevance be disregarded without affecting the validity and enforceability of an award? What power does the arbitral tribunal have?

How is the governing law of a contract determined? What are the effects of the parties' choice of law? How is the governing law chosen in arbitration?

As the Middle East became an economically underdeveloped region, its entrepreneurs did not form movements to constrain either rulers or clerics. They did not bring about liberalization through organizational innovations that strengthened them politically. A basic reason is that, until the transplant of modern economic institutions from Europe, the Middle East’s private enterprises remained small and ephemeral. These characteristics precluded sustained coalitions representing business interests. A further consequence was the failure to institute political checks and balances of the type that made European rulers submit to rule of law. Several elements of the Islamic institutional complex contributed to keeping Middle Eastern enterprises structurally stagnant until the 1800s. Most critically, Islam’s partnership rules allowed partners to pull out at will, and its inheritance system hindered capital accumulation. The upshot is that enterprises did not experience operational challenges of the type that would have stimulated organizational innovations. Among the innovations that did not emerge indigenously are banks, chambers of commerce, business publications, stock exchanges, and formal insurance markets. Their long absence contributed to keeping private economic actors politically weak. It also compounded the endemic weaknesses of civil society.

Res judicata, or claim preclusion, is no less important a matter in international arbitration than in national court litigation. Nothing less than the finality of an adjudication is at stake.In principle, a tribunal should decline to adjudicate a dispute if it has already been adjudicated either in a prior judgment or award. Apart from all the disadvantages of duplicative proceedings, a tribunal’s failure to treat a prior adjudication as preclusive made lead to set aside of its award.Even if an adjudication is final and binding, or in the case of an award entitled to recognition, certain so-called “identities” must be established, whether identity of party, identity of claim, or identity of object, or all of the above. But how are they to be defined? Herein lies the difficulty for tribunals.The requirements of res judicata are a matter of forum law and, unlike a national court, an arbitral tribunal has no forum law and derives little if any guidance from the parties’ agreements, arbitration laws or institutional rules. Tribunals have a choice-of-law challenge, their best options being the res judicata norms of one body of national law or another and an international standard if one can be ascertained.

Chapter 11 covers issues relating to litigation. Part A first addresses the right of exclusive licensees of patents, copyrights, trademarks and trade secrets to sue to enforce licensed IP against third party infringers, and the rules requiring licensors to be joined in such suits. The chapter next moves to contractual clauses that allocate responsibilty for litigation among the licensor and licensee (Ryan v. Graco). It next addresses contractual provisions relating to domestic and international choice of law and dispute resolution, including required arbitration and mediation (alternate dispute resolution). The shifting of fees and litigation expenses is covered next. The chapter concludes by considering special provisions germane to licenses that are entered into in settlement of litigation.

This chapter proposes that a carefully crafted private international law-based framework allocates regulatory authority between the national and institutional orders so as to allow maintaining institutional independence without sacrificing access to justice. It is argued that the ideal approach to implement the proposed regime is through an international arrangement. Of course, international agreements can take time to negotiate. Given that private international law rules can be adjusted nationally without the need for action on the international plain, the proposed framework can be implemented even in the absence of immediate international action. It is submitted that private international law techniques can help bring to an end the denial of justice age for the victims of IO conduct. A conundrum that public international law has not been able to address for decades can readily be resolve using private international law.

This chapter explains and maps the WA’s and the Protocol’s perhaps surprising silence on private international law, or the conflict of laws: the rules that govern international private law litigation. There is an explanation for the failure to provide for any matters in respect of choice of law: the UK can, and has been able to, adopt a quick fix in domestic law, with no need for EU involvement or reciprocity, that maintains the status quo ante. Jurisdiction and recognition and enforcement of judgments, however, do not admit of any easy or comprehensive answers. It appears that the UK’s best chance of minimizing disruption in this area has now been taken off the table by the EU, leaving uncertainty about the future.

While Erie limited federal judicial power along one dimenions, it left many questions unresolved: How far did its rule extend? Were there still some special subjects about which the federal courts could develop a federal common law? What procedural rules governed the federal courts? Should the federal courts follow the choice-of-law rules in their states or develop an independent body of federal choice-of-law rules?The Court dealt with several of these questions in the years immediately after Erie. And it had to begin to interpret the reach of the Federal Rules of Civil Procedure, a code aimed at simplifying the rules regulating how litigation in the federal courts should proceed, adopted in 1937. In Sibbach v. Wilson the Court relied on a distinction between rules regulting procedure and those dealing with substance, and controversially held that an order directing that a litigant undergo a physical examination dealt with procedure rather than substance. It generally rejected constitutional challenges to state choice-of-law rules, and then held that Erie required the federal courts to follow the choice-of-law rules of the states in which they sat.

H. L. A. Hart famously suggested to understand legal systems as consisting not only of primary rules (rules that require or forbid certain conduct) but also of secondary rules (rules that determine how rules are created, changed and abolished). This is enough for law within one system, but it cannot account for relations between different legal systems. For this purpose, the chapter introduces the concept of tertiary rules that determine a legal system’s relation with another legal system. The most fundamental such tertiary rule is the rule of external recognition – the rule with which a legal system recognizes a foreign law as law. But this is not the only tertiary rule – choice-of-law rules and certain other rules also count as tertiary rules. The chapter demonstrates the empirical and theoretical importance of the concept of tertiary rules and discusses other examples.

In addition to the main doctrinal barriers listed in previous chapters, there are other substantive legal barriers victims face when trying to obtain a judicial remedy for TNC-related extraterritorial human rights abuses. For example, there remains the unsettled questions under international and domestic law of whether a corporation can violate international law, and thus whether it can be sued for violations of international law, and the unsettled law regarding the legal standard for corporate vicarious liability for human rights violations.

general problems regarding choice of law

general problems regarding choice of law

Philip Jessup correctly observed sixty years ago that multinational corporate activity created new challenges for nation-states and their territorially based rules for jurisdiction, choice of law, and judgment recognitions. Those challenges are exponentially more difficult in the 21st century because electronic data—everything from e-mails and text messages to Facebook and Instagram posts to Twitter pronouncements to drone warfare data to search algorithms to financial transactions to cloud data storage—travel around the globe with little relationship to physical territory. In addition, all of this data is often in the custody and control of data intermediaries. Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial location of data becomes increasingly arbitrary and substantively unimportant. Second, territorially based courts (or law enforcement authorities generally) will often be unable to easily enforce their decisions because those decisions require cooperation from relevant actors in far-flung communities. Third, governmental and judicial authorities are increasingly turning to multinational corporate data intermediaries to carry out and enforce their orders because only those companies have sufficient global reach to make legal rulings effective.