Abstract
The national and foreign doctrines uphold the absence of lex fori for the international arbitrator since the origin of the international arbitration. Our goal is to emphasize the demand of electing a lex fori for the international arbitrator for as much there is a collection of issues concerning the intervention of the State Courts in the role of arbitration support. The lex fori, that is supposed to inquire, will assist the arbitrator in determining the applicable law to the dignity of the dispute, and will regulate, undoubtedly, the litigation issues of arbitration. Based on the predominately upheld position in the doctrine, we will provide evidence to the specific limitations of the most aimed efficacy of the arbitration decisions. We will demonstrate through the jurisprudential (arbitration) analysis the necessity of appealing to the State Courts, excelling their contribution for the arbitration success. For the international arbitrator, the focus of the arbitration in the quality of lex fori comes up as important. We will draft its potential regulation capacities while cohesive juridical system, mainly in the dissension subsystem, the principles and proceeding rules, without forgetting the legitimacy to apply other transnational system rules To deny the existence of a lex fori to the international arbitrator is a redundancy, for, beyond the arbitrator having a lordship, the arbitration court also has a lex fori.Keywords: arbitration; arbitrator; international; lex fori
Highlights
This paper involves a critical analysis of the arbitrator's need for a lex fori
Since the beginning of international arbitration, maxime commercial, part of the doctrine and jurisprudence argue the absence of lex fori to the international arbitration
The issue of arbitrator lex fori puts up with greater evidence when the parties did not elect the law governing the substance of the case, have not designated the seat of the arbitration and have not chosen the law governing the arbitration proceedings
Summary
This paper involves a critical analysis of the arbitrator's need for a lex fori. The globalization of international commercial relationships has contributed for the development of international arbitration. The determination of the lex fori becomes relevant always when the parties dont choose the ground of action law, nor the arbitration seat, nor the procedure arbitration law. Concerning the procedural arbitration questions and in the absence of that choice the arbitrator is responsible to determine the seat where the arbitration will take place. This way we can know what is arbitration law. In international arbitrations we must recognize an arbitration seat and an arbitrator’s lex fori will assume an important role ex ante, during and ex post arbitration
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