Considerations on the choice of substantive law applicable to the merits of the dispute in international arbitration and the role of the arbitrator.

Abstract

Arbitration as an alternative method for resolving disputes arising from contractual relationships has assumed increasing importance in the international community. In this work, we will address the problem of autonomy of will in international arbitration, inquiring whether or not it is possible for the parties to freely choose the substantive law applicable to the merits of their disputes, and then investigating how the arbitrator should act in the absence of an express choice. The methodology employed will consist mainly of the collection and examination of national and international doctrinal positions on the subject in question, as well as the specific analysis of decisions of Arbitral Tribunals and international instruments. It appears that we will conclude that it is possible, at least in cases of international arbitration, for the parties to choose the substantive law to be applied to the merits of their disputes. In the absence of an express choice, the arbitrator must extract from the objective criteria of the contract – from the text or the contractual context – a solution that points to an implicit choice, since no modern arbitration statute requires specific forms for the choice, although nothing prevents inferring the existence of an implicit agreement from the parties' conduct. If it is impossible to ascertain such a choice, either due to a lack of sufficient objective evidence or due to disagreement between the contracting parties regarding the applicable law, the arbitrator may resort to international instruments which, in turn, do not offer a specific method to be followed, granting reasonable discretion to the external adjudicator.