The Role of the Lex Loci Arbitri in International Commercial Arbitration

Abstract

THIS ARTICLE is concerned with the role of the lex loci arbitri in international commercial arbitration1 and the extent to which judgments or orders made by a court of one state2 should influence a foreign court of another state in which the arbitral award is sought to be enforced. Much has been written about the concept of international commercial arbitration as an autonomous, anational institution, the procedures of which are not subject to the constraints of national laws. If any excuse is needed for adding yet more to the literature on the subject, it is its relevance to the future development of international co-operation in cross-border dispute resolution. ### (a) The Genesis of the Autonomy Concept The relationship between courts and private tribunals has not always been as benevolent as it is today. In England the central courts for centuries jealously guarded their domain, watchful of encroachments on their jurisdiction. Even among the courts themselves there were strenuous turf battles as each sought to enlarge its jurisdiction at the expense of others. One unfortunate victim of this rivalry was commercial law, which lost much of its international character as the common law courts gradually usurped the powers of those institutions most responsive to external influences, notably the ecclesiastical courts, the courts of Admiralty and the merchant courts. Similarly, arbitration was for a long time viewed with disfavour, being seen as a private dispute settlement mechanism designed to oust the jurisdiction of the courts and to substitute private adjudication for public decision-making. This hostility to the private process of arbitration was not confined to English courts but was a widespread phenomenon. However, every action prompts reaction. The stricter the controls, the more vehement the demand for liberation. Ultimately, in England as elsewhere, pressures from the commercial community were not to be denied. Fierce judicial opposition to arbitration …