International Commercial Arbitration in Asia and the Choice of Law Determination

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International Commercial Arbitration in Asia andthe Choice of Law Determination

Harisankar K.S*

The article essentially deals with the choice of law process associated with three principal aspectsof applicable laws in international commercial arbitration, namely, the law governing arbitrationagreements, the law governing arbitral procedure and the law governing the substantive merits ofthe dispute.This research is of significance as these different aspects of arbitration (the agreement,the procedure and merits of the dispute) are commonly subjected to different laws.As a precursor,the introductory part of this article discusses the evolution and present position of internationalcommercial arbitration in the region.The following chapter sets out the basic interaction betweenprivate international law and international commercial arbitration, as well as an overview of thechoice of law process, which by and large is treated as the essential stage of a conflict of lawsmethodology. This section of the article gives a brief sketch of the conflict of laws system inascertaining the applicable laws relating to the three elements of an international arbitrationprocess, placing a focus on different approaches adopted by some of the more importantarbitral-legal systems in Asia. As a disclaimer, the other two important questions of privateinternational law, jurisdiction and enforcement of foreign awards, are not part of this discussion.

1 INTRODUCTION

Over the past decades, the world community has witnessed an increasing numberof cross-border transactions and investments in the Asian region, resulting in asubsequent rise in cross-border business disputes. Parties to these transactionsfavour international commercial arbitration for their resolution of disputes. Thereis little doubt that the choice of arbitral seat is influenced, inter alia, by the arbitralinfrastructure and the involvement of the judiciary in the place of arbitration.Asian countries have responded to these demands effectively by developing theirinfrastructure for arbitration coupled with significant efforts to update their ownarbitration laws. Following this surge in international commercial arbitration, therehave been developments in the conflict of laws jurisprudence in several legalsystems, such as Singapore, Hong Kong, Malaysia, Dubai, and India.

* Assistant Professor and Executive Director, Centre for Advanced Research & Training in ArbitrationLaw (CARTAL) at the National Law University, Jodhpur, India. An earlier draft of this article wasprepared for a presentation at the Tenth Annual Conference of the Asian Law Institute (ASLI) held atthe National Law School of India University, Bangalore, on 23–24 May 2013.

Harisankar K.S. ‘International Commercial Arbitration in Asia and the Choice of Law Determination’.Journal of International Arbitration 30, no. 6 (2013): 621–636.© 2013 Kluwer Law International BV, The Netherlands

1.1 IMPORTANCE OF INTERNATIONAL COMMERCIAL ARBITRATION IN ASIA

The international business community all across the globe has acceptedinternational commercial arbitration1 as an effective mechanism for resolvingcommercial disputes. The unwillingness of parties to have matters resolved in thenational court of the other disputing party, with perhaps unfamiliar law, languageand culture, is often suggested as one of the major reasons for this preference.Thehistory of arbitration as an informal mechanism of dispute settlement in the Asiancontinent can be traced back to ancient times.2 The political and economicconditions that existed in various countries in the region created major platformsfor commerce and trade to grow until the beginning of the twentieth century.Theregion also manifested hostility towards transnational arbitration for the resolutionof commercial disputes. However, this lasted only until the first arbitrationadministered by the ICC, through which an Asian presence was initiallyintroduced to the international arbitration scene.3 Many nations in the regiongained a significant economic momentum after the Second World War andwitnessed an impressive record of growth in the following decades. For instance,Japan emerged as an economic superpower after the Second World War, and,more recently, countries such as China and India have survived the global financialcrisis and are continuing to experience economic growth at rapid rates, deservedlyclaiming places in the ‘BRIC’ bloc.4 In addition, more than half of the ‘Next 11’5

members, countries which could greatly impact the global economy in the nearfuture, are located in the Asia-Pacific region. The liberal trade policies of theseAsian economies have helped in increasing the number of internationalcommercial transactions.

This unprecedented growth of Asian countries, particularly after the financialcrisis, resulted in a surge in trade and investments in the region. One of theinevitable consequences of these commercial activities was, of course, theexpansion of cross-border disputes involving multinational corporations and

1 The terms ‘international arbitration’ and ‘international commercial arbitration’ are usedinterchangeably in this article.

2 See Simon Greenberg et al., International Commercial Arbitration: An Asia Pacific Perspective,(Cambridge U. Press 2011); e.g., arbitration in China can be traced back to about 2100–1600 BC.

3 Ibid. at 34, (authors note that, when the ICC Court administered its first case in 1923, the claimantwas of Thai nationality).

4 In 2001, Goldman Sachs created and coined the term ‘BRIC’ to identify the world’s fastest growingeconomies.These included Brazil, Russia, India, and China.

5 In 2005, Goldman Sachs identified the Next 11 (N-11), countries with the largest populations afterBRIC, which (combined with economic and political conditions) could greatly impact the globaleconomy. The N-11 countries include Bangladesh, Egypt, Indonesia, Iran, Korea, Mexico, Nigeria,Pakistan, Philippines, Turkey, and Vietnam; see <www.goldmansachs.com/gsam/individuals/products/growth_markets/n11/index.html> (accessed 24 Mar. 2013).

JOURNAL OF INTERNATIONAL ARBITRATION622

sovereign states.The Asian international business community showed no reluctancein embracing international arbitration as a viable dispute resolution mechanism, astheir counterparts in the Western world did from the beginning of the twentiethcentury. Thus, it can be said with little doubt that international arbitration hasemerged as the most preferred mechanism for resolving trade and investmentdisputes in twenty-first century Asia. The positive changes in the arbitrationlandscape of Asia-Pacific are evidenced by the significant number of countries thathave ratified the United Nations Convention on the Recognition andEnforcement of Foreign Arbitral Awards6 so far.7 The latest addition is Myanmar,which consented to be bound by the Convention on 16 April this year.8 As anincentive for bringing foreign investments home, many legislators have updatedtheir national arbitration laws in line with the UNCITRAL Model Law.9 Theselegislative changes10 reflecting the best practices in international arbitration haveincreased the receptiveness of the new arbitration culture in Asia. In addition tothese law reforms, the development of an international arbitration infrastructure, aswell as pro-arbitration judgments from various courts in the region, have madeAsia an arbitration hotspot in current times.

1.2 PROLIFERATION OF ARBITRAL INSTITUTIONS

The debate on the advantages of institutional arbitration over ad hoc arbitration isstill a live topic for discussion in the realm of international arbitration law.However, there is little doubt that the presence of well-developed arbitralinstitutions will give parties a better option for structured arbitration. In the recentpast, a number of globally well-known arbitral institutions have established theiroffices in various cities in Asia.11 Traditionally, Western institutions such as theInternational Chamber of Commerce, London Court of International Arbitration,and the American Arbitration Association, have dominated the field, thereforealmost all the international commercial contracts contained an arbitration clause

6 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, 330 U.N.T.S. 38(No. 4739).

7 Excluding a few countries such as North Korea,Taiwan, Bhutan, Maldives, Iraq, etc. most of the Asiancountries are parties to the New York Convention.

8 See News, <www.newyorkconvention.org/news/accession-myanmar-to-new-york-convention> (accessed22 May 2013).

9 UNCITRAL Model Law on International Commercial Arbitration, 24 I.L.M. 1302 (1985).10 The major arbitral systems such as Singapore, Australia, Hong Kong, Malaysia, Thailand, and India

follow the UNCITRAL Model Law, whereas, countries like China and Indonesia have updated theirarbitration legislations without adopting the Model Law.

11 For instance, the ICC Court of Arbitration established its first Secretariat outside of Paris to administerproceedings in Hong Kong in 2008 whereas the LCIA India established its business in New Delhi in2009.

INTERNATIONAL COMMERCIAL ARBITRATION IN ASIA 623

favouring these institutional rules. But the proliferation of national institutions12 inthe region has revolutionized the scenario. One of the reasons for this evolution isthe governmental interest and support involved in importing arbitration services totheir respective countries. Many of the Asian institutions are in fact state-sponsoredbodies, whose aim is to provide cost-effective dispute resolution through state-of-the-art facilities.13 This contest for the ‘invisible exports’14 of the arbitrationindustry has helped the Asian economy tremendously, through which significantnumbers of arbitral institutions have sprung up across the region. Many of theseinstitutions attract external support from the international trading community andhave emerged as competitors for the traditional institutions in Europe andAmerica.

In recent years, many Asian arbitral institutions have really come of age,particularly in terms of its case-load. In particular, the Singapore InternationalArbitration Centre (SIAC) registered a record number of cases in 2012 where theaverage monetary value involved in the dispute increased significantly, helping theCentre to position itself as the world’s fastest growing international arbitralinstitution.15 Similarly, Hong Kong International Arbitration Centre (HKIAC),one of the busiest institutions, also has an ever-growing number of disputeresolution matters, including international arbitration. It is noteworthy that theacceptance of Hong Kong as an international arbitration venue has mirrored theevolution of China as an economic power. Similarly, Malaysia is also an importantjurisdiction for the arbitration community, with its leading institution, KualaLampur Regional Centre for Arbitration (KLRCA), having a significantinternational presence. Likewise, the Japanese Commercial Arbitration Association,Korean Commercial Arbitration Board, and China International Economic andTrade Arbitration Commission, representative institutions for internationalcommercial arbitration respectively in Japan, South Korea, and China, add to theprominence of institutional arbitration in Asia.

12 Apart from the major institutions mentioned in the article, there are many more institutions, such asthe Bahrain Centre for Dispute Resolution (BCDR-AAA), the Dubai International ArbitrationCentre (DIAC), the Dubai International Financial Centre (DIFC), the Chinese European ArbitrationCentre (CEAC), and the Indian Council of Arbitration (ICA), etc.

13 It is also noted that, the connection between a local institution and the government does raise issuesrelating to the fairness and impartiality of proceedings, especially when state entities are involved inarbitration, which is administered by the local institution.

14 International arbitration involves enormous amounts of money and has become an important sourceof national income for many South-east Asian countries.The well-known example of the usage of theterm ‘invisible exports’ in connection with arbitration was coined by Lord Cullen of Ashborne, duringthe parliamentary debates on the English Arbitration Act, 1979.

15 As per the SIAC annual report of 2012, the centre handled 235 new cases, in which the total sumamounted to SGD 3.61 billion, which is more than double that in previous years; SIAC AnnualReport 2012, <www.siac.org.sg/images/stories/documents/SIAC_Annual_Report_2012.pdf> (accessed27 Mar. 2013).


Another notable development is the trend in liberalizing the legal servicessector in the region. Many legal systems have removed the barriers to foreign lawfirms, allowing leading law firms from the United States and Europe to establishtheir offices in these jurisdictions. Not surprisingly, jurisdictions that have openedtheir markets to the import of legal services have, eventually, become favourablearbitration destinations.16 Here, it is worth mentioning that, although India has toopen its legal market, a recent decision of the Madras High Court aimed atremoving these barriers in the context of international arbitration.17

1.3 PRO-ARBITRATION JUDICIARY

All the major Asian economies are now capable of emulating their Westerncounterparts, having updated their national legislations and established world classarbitration centres. However, the credibility of an arbitral regime depends more onthe attitude of the national courts.18 Essential to this attitude is their determinationto support arbitrations happening locally and a better understanding ofinternational arbitration law. A number of Asian courts have demonstrated this inthe past few years by showing reluctance to set aside an award or refuse theenforcement of foreign awards. As a matter of illustration, the Indian SupremeCourt has recently overruled its earlier infamous decisions19 in order to showIndia’s arbitration-friendly nature. In Bharat Aluminium Co. v. Kaiser AluminiumTechnical Service Inc.,20 the court clarified that Indian state courts cannot supervisearbitration taking place abroad. Similarly, the Singapore Court of Appeal upheldthe validity of a pathological arbitration clause to make it operable.21 In anotherdecision, the Singapore Court of Appeal confirmed the legal position thatSingapore courts will not interfere with the decision of the arbitral tribunal.22 Nodoubt, the court decisions are in line with the modern standards of internationalarbitration and it has made Asian cities more attractive as a venue for internationalarbitration. In many ways, Hong Kong and Singapore have now emerged as two of

16 Under the GATS, examples of markets that are liberalized to varying degrees include Australia, Japan,Singapore, Hong Kong, Vietnam, Thailand, and mainland China. Markets that are closed, and,therefore, off-limits to foreign lawyers, include South Korea, India, Malaysia, and Indonesia; see,Andrew Godwin, Prising open the doors to Asian legal markets, available at <www.lawcouncil.asn.au/lca/index.cfm?13AD5494-AEC2-5B6B-5D13-7CD599FEB644> (accessed 24 Mar. 2013).

17 See AK Balaji v. Government of India,Ashurst LLP, White & Case et al. (WP5614/2010).18 Generally, courts with an attitude of minimal intervention in arbitral matters are known to be

arbitration friendly.This is a very important consideration for parties selecting their arbitral seat.19 Bhatia Int’l v. Bulk Trading S.A., (2002) 4 S.C.C. 105 (India); Venture Global v. Satyam Computer Services

Ltd., (2008) 4 S.C.C. 190 (India).20 Bharat Aluminium Co. v. Kaiser AluminiumTechnical Services Inc., (2012) 9 S.C.C. 552.21 InsignmaTechnology Co. Ltd. v.AlstomTechnology Ltd., (2009) 3 S.L.R. (R) 936.22 PT Prima Int’l Development v. Kempinski Hotels S.A., (2012) S.G.C.A. 35.


the leading venues for international arbitration, alongside traditional locations suchas London, New York, Paris, and Geneva. Due to the positive developments, asmentioned in the above paragraphs, global corporations are ready to ‘place’ theirarbitrations in various Asian cities. As a consequence, the judiciary of thesecountries have been kept busy addressing a number of conflict of laws issuesvis-à-vis international arbitration in the past few years. The manner in whichcourts answer these questions has resulted in the different legal systems developingeither a ‘hostile’ or ‘friendly’ attitude towards arbitration.

2 SETTING THE CONFLICTS THEORY IN INTERNATIONALCOMMERCIAL ARBITRATION

Conflict of laws, also known as private international law, is that part of a municipallegal system which comes into operation whenever it is confronted by a legalproblem having a foreign element.23 An international commercial transaction,particularly international arbitration, is perhaps the most likely platform where onecan find various kinds of foreign elements,24 and, naturally, a conflict of lawsanalysis of international commercial arbitration is highly demanding.25 Moreover,because of these complex foreign elements, the traditional conflict of laws theoryin the field of international commerce has resulted in a lack of uniform rules,causing unpredictability.26 The critiques of the traditional conflicts theory arguethat these rules are inadequate to respond to the specific normative requirementsof international commercial transactions.27 This criticism, however, is confined tothe choice of law determinations of the proper law of contract. But the modernconflict of law rules (which are again prone to the global uniformity criticism)

23 Sir Lawrence Collins, Dicey, Morris & Collins on the Conflict of Laws, (14th ed., Sweet & Maxwell,2006) [hereinafter ‘Dicey, Morris, & Collins on the Conflict of Laws’]; this work basically details therules applied by an English court when confronted with legal issues having a foreign element.Thereare, basically, three questions that are to be addressed by a conflict of laws system; namely, the questionsof jurisdiction, choice of law, and recognition and enforcement of foreign judgments/awards.

24 The definition of ‘international arbitration,’ as differentiated from ‘domestic arbitration’ will have oneor more foreign elements. For instance, as per the UNCITRAL Model Law, the internationalcharacter of arbitration may depend on the nationality of the parties, or the place of arbitration, etc.;see UNCITRAL Model Law, supra n. 9, Art. 1(3).

25 It has been observed that: ‘The realm of conflict of laws is a dismal swamp, filled with quakingquagmires and inhabited by learned but eccentric professors who theorize about mysterious matters ina strange and incomprehensible jargon.The ordinary court or lawyer is quiet lost when entangled init.’ See William L Prosser, Interstate publication, 51 Mich. L. Rev. 959, 971 (1953).

26 Markus Petsche, International Commercial Arbitration and the Transformation of the Conflict of LawsTheory available at <works.bepress.com/markus_petsche/1> (accessed 2 Apr. 2013).

27 Ibid.


which exist in the international arbitration jurisprudence28 have made an attemptto provide predictable solutions in dealing with the present issues.

As F.A. Mann argued:

arbitrations between States and private persons are necessarily founded on private, asopposed to public international law, even though a given system of private law mayperhaps permit the parties to select public international law as the proper law of theircontract.29

Most of the research available on the interplay between conflict of laws andinternational commercial arbitration is limited to the choice of law governing thesubstance of the dispute whereby the conflicts principles can be applied by thearbitrator in this context.30 The literature available primarily focuses onthe considerations of a tribunal when it is requested to select the substantive law inthe absence of a party choice, in light of the trend of avoiding conflict of lawsprinciples and applying the transnational legal system, i.e., the lex mercatoria.However, there are some authoritative treatments of this interplay, especially inrelation to the arbitration process and the arbitration agreement.31 Traditionally, atleast in the Western world, the law of the forum (lex fori) was the main rule togovern the arbitration, instead of the lex loci (law of the place where the contractwas made) or lex situs (law of the place where the arbitration was to take place).32

We find that the situation has greatly changed today.With increasing complexity ofinternational commercial arbitration, the traditional conflict of laws rules haveundergone a transformation to a large extent.33 From the standpoint of conflict oflaws, the threshold question that has arisen in the context of arbitration is whetherit is substantive or procedural.34 If it is to be treated as procedural, then all mattersof procedure are governed by the lex fori. But the application of conflict of laws inthe context of international commercial arbitration does not stop here. Arguably,there is something remedial about the arbitration proceedings themselves. So the

28 It includes different rules from the international instruments such as the New York Convention,Model Law, etc. and, especially, Rule 57 in Dicey, Morris, & Collins on the Conflict of Laws, supran. 23; in addition, it covers various court decisions interpreting the conflicts principles.

29 F.A. Mann, The UNCITRAL Model Law: Lex Facit Arbitrum, 2 Arb. Int’l 241–60 (1986).30 Supra n. 26; see Ole Lando, The Law Applicable to the Merits of the Dispute, 2 Arb. Int’l 104 (1986); Beda

Wortmann, Choice of Law by Arbitrators:The Applicable Conflict of Laws System, 14 Arb. Int’l 97 (1998);A.F. M. Maniruzzaman, Conflict of Laws Issues in International Arbitration: Practice and Trends, 9 Arb. Int’l 371(1993).

31 Ernest G. Lorenzen, Commercial Arbitration. International and Interstate Aspects, 43 Yale L. J. 716 (1934)(author focuses on the attitude of courts when enforcing arbitration agreements and compelling theparties to arbitration).

32 Ibid. Lorenzen criticizes this approach and argues that the proper law should be applied instead of thelex fori.

33 For instance, the new edition of Dicey, Morris, & Collins on the Conflict of Laws, supra n. 23, containsmodified rules on the choice of law process in the field of international arbitration.

34 David S. Stern, The Conflict of Laws in Commercial Arbitration, 17 L. & Contemp. Probs. 567–79 (1952).


pertinent question remains: should its remedial phase characterize the law selectionprocess? The answer is no and will be addressed in the following paragraphs.

3 CHOICE OF LAW PROCESS

An authoritative treatise describes international commercial arbitration as a‘forensic minefield’.35 According to the authors, international commercialarbitration is a network of complex systems of laws, and includes the followingaspects, which might be governed by different applicable laws:36

– the law governing the capacity of the parties to enter into the arbitrationagreement;

– the law governing the arbitration agreement and the performance of thatagreement;

– the law governing the existence and proceedings of the arbitral tribunal(lex arbitri);

– the ‘proper law of the contract’, governing the substantive issues in dispute;– the law governing recognition and enforcement of the award.

From the standpoint of the choice of law process, the present author identifiesthree aspects, namely, the conduct of arbitration, the agreement to arbitrate, andthe underlying contract, for further discussion. It is possible, but not necessary, thatthese issues are governed by three different laws. From a private international lawperspective, the process of characterization37 (whether it pertains to substance orprocedure) is highly important in determining the applicable law for eachcategory. However, the international arbitration jurisprudence has convenientlyignored this stage of the process. It is also important to note that no legislationregulating international arbitration, including the UNCITRAL Model Law,provides for the private international law rules to deal with the perplexed choiceof law determinations for the above-mentioned aspects of internationalarbitration.38

Unlike national court judges (for whom the starting point is the conflict oflaws norms of their lex fori), arbitrators faced with cross-border disputes will rarelyfind any single country to serve as the obvious source for their authority. However,this argument does not mean that private international law can be isolated from

35 A. Redfern & M. Hunter, Law and Practice of International Commercial arbitration (Sweet &Maxwell 2004).

36 Ibid. at 77–78.37 This is the initial stage of the choice of law process, where the juridical category of an issue is

classified in order to find out more about the governing law.38 The only exception is found in Art. 28 of the UNCITRAL Model Law which provides for the choice

of law determination for the substance of a dispute.


international commercial arbitration. For instance, a classic treatise39 on privateinternational law addresses the subject of international arbitration as an integralpart of conflict of laws.40 Rule 57 of this text provides a set of rules for thedetermination of applicable laws for the three aspects of an internationalarbitration. Three distinct issues of governing law may arise in internationalcommercial arbitration: the law governing the arbitration agreement, the lawgoverning the arbitral procedure, and the law governing the substantive merits ofthe dispute.41

3.1 LAW GOVERNING THE ARBITRATION AGREEMENT

Arbitration is a consensual process and it essentially requires an agreement, eitherin the form of a clause in a contract to submit future disputes arising under thecontract to arbitration, or in the form of a separate agreement to submit existingdisputes. In both cases, all legal systems treat the arbitration agreement as a separateagreement, whose validity is not ipso facto affected by the invalidity of theunderlying contract.42 From the standpoint of the conflict of laws, the questionarises as to what law should govern its validity. Here, a correct characterization isrequired, as to whether it is substantive or procedural. According to JudgeCardozo, ‘An agreement that all differences arising under a contract shall besubmitted to arbitration relates to the law of remedies, and the law that governsremedies is the law of the forum.’43 In the earlier American jurisprudence, whenthe courts have been faced with the problem of deciding what should be theproper law applicable to a contract containing an arbitration clause, they haveworked through a syllogism:

Arbitration is remedial.That which is remedial is procedural.That which is procedural, inthe ordinary sense, is procedural in the conflict-of-laws sense.That which is procedural inthe conflict of laws sense is governed by the lex fori.44

However, Lorenzen argues that this kind of classification leads to harmful results.Like all other agreements, an agreement to arbitrate also creates substantive

rights. If that is the case, should it be governed by the intention of the parties or bysome fixed rule of law? If governed by the latter, is it to be determined by the law

39 Supra n. 23.40 Ibid. ch. 16.41 Ibid. at 715; Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] A.C. 334; Naviera

Amazonica Peruana S.A. v. Cia Internacional de Segurous del Peru, [1988] 1 Lloyd’s Rep. 116.42 This is a general principle of international arbitration; see UNCITRAL Model Law, supra n. 9, Art. 16.43 Meacham v. Jamestown, Franklin & Clearfield Ry. Co., 211 N.Y. 346, 105 N.E. 653 (1914); cited in

Lorenzen, supra n. 31.44 Ibid. cited in David S. Stern, The Conflict of Laws in Commercial Arbitration, 17 L. & Contemp. Probs.

567–79 (1952).


where the contract is made, where the arbitration is to take place, or evencontrolled by the law of the common nationality of the parties, or possibly bysome other law? As far as the applicable law of general contracts are concerned,support can be found for any of these propositions.45 Parties enjoy the autonomyof choice of law in the case of any contractual question.This means that even inthe case of an agreement to arbitrate, they have the freedom to select a governinglaw expressly or impliedly.46 In the absence of a choice (express or implied), thedetermination will be based on the ‘closest and most real connection’ test. In thisregard, there are two existing viewpoints. First, if there is an express choice of lawto govern the contract as a whole, it is presumed that the arbitration agreementwill normally be governed by the same law,47 irrespective of the seat of arbitration.This seems entirely logical: as the arbitration agreement is part of the contract, itshould be governed by the same law that is applicable to the contract.The Indianposition to determine the law governing arbitration agreement in the absence ofan express choice was declared in National Thermal Power Corp. v. Singer Co.,48

where the Supreme Court held that the proper law of the arbitration agreement isnormally the law of the contract expressly chosen by the parties.This position hadbeen followed in various other judgments under the Indian arbitration law.49

The contrary view is that, as mentioned earlier, an arbitration agreementshould be treated separately and independently from the contract, and might,therefore, be governed by a law other than the law applicable to the underlyingcontract. Upholding this view, English courts have recently held that the law withwhich the arbitration agreement has the closest connection is the law of the placeof arbitration, irrespective of the express choice of law governing the contract.50

The proponents of this position argue that in the absence of an express or impliedchoice of law to govern the arbitration agreement, the court (or the tribunal)should look for the law with the closest connection to the characteristicperformance, and the characteristic performance under an arbitration clause is anobligation to arbitrate disputes. This obligation to undertake an arbitrationprocedure to resolve a dispute appears much more closely related to the placewhere the procedure will happen, i.e., the seat of arbitration, and, therefore, the

45 Ernest G. Lorenzen, Validity and Effects of Contracts in the Conflict of Laws, 30 Yale L. J. 565 (1921); seealso Convention on the Law Applicable to Contractual Obligations, Rome, 1980, 80/934/E.E.C.

46 See Dicey, Morris, & Collins on the Conflict of Laws, supra n. 23, Rule. 57(1).47 Union of India v. Mcdonnel Douglas Corp., [1993] 2 Lloyd’s Rep. 48; Sonatrach Petroleum Corp. v. Ferrel

International Ltd., [2002] 1 All E.R. 627; see M. Pryles, Choice of Law issues in International Arbitration, 63Arb. 202 (1997) (however, this is only a presumption).

48 NationalThermal Power Corp. v. Singer Co., (1992) 3 S.C.C. 51 (India).49 See Sumitomo v. ONGC Ltd., (1998) 1 S.C.C. 305; Eitzen Bulk A.S. v. Ashapura Minechem Ltd., AIR

2011 Guj 13; Aastha Broadcasting Network Ltd. v.Thaicom Public Co. Ltd., MANU/DE/4410/2011.50 Sulamérica CIA Nacional De Seguros S.A. v. Enesa Engenharia S.A., [2012] EWHC 42; Abuja Int’l Hotels

Ltd. v. Meridien SAS, [2012] EWHC 87.


agreement to arbitrate is mostly connected to the law of the place of arbitration.51

However, in a more recent decision, the English commercial court held that thechoice of law governing the substantive contract is a ‘strong indicator’ todetermine the applicable law of the arbitration agreement, disregarding the expresschoice of seat.52 The Singapore High Court, in its decision in Government of theRepublic of Philippines v. Philippine International Air Terminals Co. Inc.,53 upheld theview that the designation of Singapore as a neutral place of arbitration is a strongconnecting factor to determine the implied choice of the parties as to the lawgoverning the arbitration agreement, which is contrary to the Indian position aswell as to the Arsanovia decision.

3.2 LAW GOVERNING ARBITRATION PROCEDURE

Every arbitration is necessarily subject to the law of a given state,54 as there can beno ‘floating’ procedure. As far as the characterization of the arbitral process isconcerned, there is no doubt that it is a matter relating to procedure.55 In classicprivate international law, all procedural issues are governed by the lex fori, i.e., lawof the forum.56 In the field of arbitration, it may be conveniently called the lexarbitri. An English judge once made an attempt to define what the lex arbitri is:

It is a body of rules which sets a standard external to the arbitration agreement, and thewishes of the parties, for the conduct of the arbitration The law governing the arbitrationcomprises the rules governing interim measures, the rules empowering the exercise by thecourt of supportive measures to assist an arbitration which has run into difficulties and therules providing for the exercise by the court of its supervisory jurisdiction over arbi-trations.57

This definition is, of course, limited to the law regulating the external conduct ofarbitration, i.e., with reference to the national courts. The term lex arbitri alsosuggests how the internal management of arbitration is regulated. As ProfessorWilliam Park wrote: ‘Private International Law is about civil litigation. When

51 See supra n. 2, at 161.52 Arsanovia Ltd. and others v. Cruz City 1 Mauritius Holdings, [2012] EWHC 3702 (Comm.) The High

Court decided that the most appropriate way of determining the applicable law was to considerwhether the parties had expressly or impliedly chosen a particular law as part of the agreement, ratherthan simply looking at which law had the closest connection to the arbitration agreement.

53 Government of the Republic of Philippines v. Philippine International AirTerminals Co. Inc., (2007) 1 S.L.R. 278.54 F.A, Mann, supra n. 29.55 This view is supported by the fact that the law regulating the arbitral process is contained in the civil

procedure code of many countries.56 Here it is to be noted that there is a contrary view, which argues that international arbitration

proceedings have no lex fori, because they are not connected to the place (physical location) ofarbitration in the same way that domestic court proceedings are connected to their forum.

57 Smith Ltd. v. H&R International, [1991] 2 Lloyd’s Rep. 127, 130 per Steyn, J.


litigants agree to arbitrate, they waive the right to bring the merits of a disputebefore national courts, which in turn must decide whether there is a need torespect the arbitration clause and/or any resulting award.’58 Hence, any conflict oflaws analysis of international arbitration should primarily be from the standpointof an external lex arbitri.59 In this context, the obvious question would be whichlaw should govern the relationship between the national court and the arbitraltribunal? To answer this, there are various theories existing regarding theidentification of the lex arbitri.60 Among the theorists, a considerable debate wasbetween the ‘localization’ (state control) theory and the ‘autonomous’(delocalization) theory.61 However, case law within the English speaking worldindicates that the arbitration community has showed a reluctance to accept thedelocalization theory.

The most established view is that the lex arbitri should be the law of the placewhere the tribunal is seated.62 Alternatively, it is theoretically possible to choose asovereign law other than the law of the seat. The seat of arbitration is a juridicalconcept, rather than a mere geographical location to conduct arbitration.63 It ishard to find a precise definition of the term ‘arbitral situs’, however differentarbitration legislations, including the UNCITRAL Model Law, provide for theparties to determine the place of arbitration by agreement.64 Therefore, it ispertinent to distinguish between the place of arbitration in the geographical sense,i.e., the place where some stages of the arbitral proceedings actually take place, andthe place of arbitration in the legal sense, i.e., the place which, from a legal point ofview, will be deemed relevant in order to establish a link between the arbitrationand a given legal system.65

58 W.W, Park, Rules and Standards in Private International Law, 73 Arb. 443 (2007).59 See Loukas Mistelis, Reality Test: Current State of affairs in theory and practice relating to ‘lex arbitri’, 17 Am.

Rev. Int’l Arb. 155 (2006).60 The main theories are: (i) the jurisdictional theory (authority derives from the sovereignty of the state

where the arbitration has its seat); (ii) the contractual theory (authority derives from agreementbetween the parties); (iii) the hybrid theory, which combines (i) + (ii) (the law of the seat allows theparties to agree); (iv) the autonomous theory (arbitration is a wholly autonomous institution, not inneed of further explanation). See Hong-lin Yu, A Theoretical Overview of the Foundations of InternationalCommercial Arbitration, 1 Contemp.Asia Arb. J. 255 (2008).

61 See Otto Sandrock, To Continue Nationalizing or to De-Nationalize? That is Now the Question inInternational Arbitration, 12 Am. Rev. Int’l Arb. 301 (2001).

62 This is generally referred to as the ‘seat theory’ in international arbitration.63 See Shashoua v. Sharma, [2009] EWHC 957 (Comm); this view was upheld by the Indian Supreme

Court in its decisions such as Dozco India P. Ltd. v. Doosan Infracore Co. Ltd., (2011) 6 S.C.C. 179 andVideocon Industries v. Union of India, (2011) 6 S.C.C. 161; also the Singapore Court of Appeal in PTGaruda Indonesia v. Bergein Air, (2002) S.G.C.A. 12.

64 See UNCITRAL Model Law, supra note 9, Art. 20.65 For a better understanding of the relevance of seat in modern international arbitration see, Filip De Ly,

Current Issues in Internal Commercial Arbitration: The Place of Arbitration in the Conflict of Laws ofInternational Commercial Arbitration: An Exercise in Arbitration Planning, 12 Nw. J. Int’l L. & Bus. 48(1991).


In practice, the seat is determined either by the parties or by the arbitralinstitution on behalf of the parties. If it has not been determined directly orindirectly by the parties, national arbitration laws provide that the arbitral tribunalmay determine the place.66 In any case, the determination of a place does notmean that all proceedings must take place there. It may be convenient for parties aswell as for arbitrators to hold meetings and hearings in different places, and thischange in the geographical location of a proceeding does not mean that thejuridical seat of arbitration changes.67 The seat of arbitration remains the placeinitially agreed by or on behalf of the parties.

The importance of the arbitral seat as the centre of gravity to determine thelex arbitri has been discussed in a number of judgments of Asian courts. Forinstance, in PT Garuda Indonesia v. Bergein Air,68 the Singapore Court of Appealpointed out the difference between the legal seat and a venue chosen to conductarbitral hearings or meetings as a matter of convenience.69 The court held that,‘where parties have agreed on the place of arbitration, it does not change eventhough the tribunal may need to hear witnesses or do any other things in relationto the arbitration in a different location’. Most importantly, the court decided thatsince the place of arbitration was agreed as Indonesia, the arbitration proceedingswould be subject to Indonesian law. The legal position with respect to theselection of the lex arbitri and its role in international arbitration was approached ina haphazard manner in India until recent times. However, in the landmarkjudgment in Bharat Aluminium v. Kaiser Aluminium,70 the Indian Supreme Courtalso clarified this distinction and held that the seat of arbitration is the key elementin determining the lex arbitri. One might argue that, at least in theory, the ‘arbitralsitus’ has lost its relevance because of the delocalization debate in internationalarbitration.71 However, the relevant case law clearly indicates that Asianjurisdictions consider the ‘arbitral situs’ as the only connecting factor for theidentification of the lex arbitri, or in other words the lex loci arbitri and its role inthe supervisory jurisdiction of the courts.

66 Supra n. 64.67 See Union of India v. McDonnel Douglas Corp., [1993] 2 Lloyd’s Rep. 48.68 PT Garuda Indonesia v. Bergein Air, (2002) S.G.C.A. 12.69 M. Scherer, The Place or ‘Seat’ of Arbitration (Possibility, and/or Sometimes Necessity of its Transfer?) Some

Remarks on the Award in ICC Arbitration no. 10’623, 21 A.S.A. Bulletin 1/2003, (the place or ‘seat’ ofarbitration is not the physical location but the link, the ‘rattachement’ or connecting factor to a givenprocedural order or ‘lex arbitri’ of the state where the ‘seat’ is situated. It is also an accepted principlethat, for convenience or other reasons, hearings and deliberations may be held elsewhere than at the‘seat’ of arbitration).

70 Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 S.C.C. 552.71 See Jan Paulson, Arbitration Unbound: Award Detached from the Law of its Country of Origin, 30 Int’l &

Comp. L. Q. 358 (1981).


3.3 SUBSTANTIVE LAW GOVERNING THE MERITS OF THE DISPUTE

In the area of conflict of laws, especially from the standpoint of an arbitral tribunal,the most important task is to determine the law governing the dispute, or in otherwords, the substantive law of the contract. Unlike the other two aspects ofinternational commercial arbitration (discussed above) relating to the arbitrationagreement and the arbitral procedure, the process of determination of theapplicable law of the underlying contract is provided under Article 28 of theUNCITRAL Model Law.According to this provision, parties have the freedom tochoose the law governing their dispute and the arbitrator has the duty to respectthe choice of law made by them.72 Similarly, the rules of most of the arbitralinstitutions require the tribunal to apply any laws or rules of law chosen by theparties.73 Parties are, generally, not restricted in their choice of law and thisfreedom extends to the selection of law even after the dispute arises.74 Choice ofnon-national standards, such as the lex mercatoria, has become a common practicein international commerce. As far as international contracts are concerned, theonly limitation applicable in the context of choice of substantive law is that thechoice should be bona fide and legal.75 But there is hardly any case law where anaward has been annulled on this ground. In addition, mandatory rules of law willbe applicable regardless of the party’s choice.76

In the absence of an express or implied choice of law by the parties, thetribunal has to determine the ‘proper law of contract’,77 which will be applicableto the substance of the dispute.This determination by the arbitral tribunal involvessome form of conflict of laws analysis. In the field of international arbitration,there exists two major approaches to determine the law that is most connected tothe dispute, namely, the ‘conflict of laws’78 and the ‘direct’79 approach. Most of the

72 See UNCITRAL Model Law, supra n. 9, Art. 8; see also Julian D.M. Lew, Applicable Law inInternational Commercial Arbitration 69 (1978); Cindy G. Buys, Validity and Effects of Contracts in theConflict of Laws, 79:59 St. John’s L. Rev. (2005).

73 For instance, ICC Rules, Art. 17(1); London Court of International Arbitration Rules (‘LCIA Rules’),Art. 22.3; International Center for Dispute Resolution of the American Arbitration AssociationDispute Resolution Procedures (‘ICDR Rules’), Art. 28(1); and the United Nations Commission onInternational Trade Law Rules of Arbitration (‘UNCITRAL Rules’), Art. 33(1), U.N. Doc.A/RES/31/98; 15 I.L.M. 701 (1976).

74 There are some variations; e.g., Art. 7 of the Chinese Arbitration Law; also, s. 28(1)(a) of theArbitration and Conciliation Act, 1996, which provides that in the case of a domestic arbitration,Indian law will be the governing law irrespective of the party choice.

75 SeeVita Food Products Inc. v. Unus Shipping Co. Ltd., [1939] A.C. 277 (PC).76 Pierre Mayer, Mandatory Rules of Law in International Arbitration, 2 Arb. Int’l 274 (1986).77 This terminology is commonly used in English common law systems; Prof.Westlake defined it as ‘the

law of the country with which the contract has its most real connection.’ See, e.g., infra n. 85.78 See UNCITRAL Model Law, supra n. 9, Art. 28(2); Dicey, Morris, & Collins on the Conflict of Laws,

supra n. 23, Rule 57(3)(c).79 This approach is common among the Asian arbitral institution rules; see supra n. 2, at 103.


arbitration laws in Asia80 follow the first approach as provided under Article 28(2)of the UNCITRAL Model Law, which allows the tribunal to use the conflict oflaws rule it deems appropriate. On the contrary, some other countries do not allowthe arbitral tribunal to use the conflicts rules to determine the proper law of thecontract. For example, the Indian arbitration law provides for a direct route inselecting the substantive law.81 According to this, a tribunal shall apply the rules oflaw it considers to be appropriate given all the circumstances surrounding the case.Here, the point of departure from the Model Law provision is that the provisionuses the phrase ‘rules of law’ instead of ‘conflict of laws rules’, which in theauthor’s opinion clearly prevents the tribunal from applying a particularjurisdiction’s private international law system, and thus avoids complexities. Thisseems logical considering the arguments that an international arbitral tribunal hasno specific lex fori. However, by requiring the tribunal to apply the appropriaterules of law considering the surrounding circumstances of the case, the Indianlegislation creates a degree of uncertainty.

In Asia, there are many jurisdictions that allow different approaches for thearbitral tribunal to determine the governing law in the absence of party choice.For instance, Chinese arbitration law requires the tribunal seated in China to applyChinese conflicts rules.82 Similarly, the Arbitration Act of Malaysia provides that, inthe absence of a designation by the parties, the tribunal shall apply the lawdetermined by the conflict of laws rules of the Malaysian system.83 The mosteffective example of a direct approach is provided under the arbitration law ofJapan,84 which provides that ‘in the absence of an agreement, the arbitral tribunalshall apply the substantive law of the State with which the civil dispute subject tothe arbitral proceedings is mostly connected’. This appears to be a directapplication of the classic conflict of laws principle, i.e., the closest connection test85

to determine the proper law of the contract. However, some jurisdictions adopt a‘no approach’ position. Indonesian arbitration law, for example, does not provideany solution to determine the applicable law by the tribunal in the absence of

80 For instance, Singapore, Hong Kong, Korea, Phillipines, New Zealand, and Australia; ibid. at 103.81 Arbitration and Conciliation Act, s. 28(1)(b)(iii) (1996) (provides that: ‘Failing any designation of the

law by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate, givenall the circumstances surrounding the dispute.’).

82 The Arbitration Law of the People’s Republic of China does not provide for it; however, the specificguideline regarding the substantive law applicable to the dispute is dealt with in the Contract Law.

83 See s. 30(4) of the Malaysian Arbitration Act of 2005 (according to the authors, the linguistic deviationfrom UNCITRAL Model Law suggests that, Malaysian conflicts principles would be applicable).

84 See Art. 36(2) of Japanese Arbitration Law (Law No.138 of 2003).85 Amin Rashid Shipping Corp. v. Kuwait Insurance Co., [1983] 3 W.L.R 241; see also, F.A. Mann, The Proper

Law in the Conflict of Laws, 46 Int’l & Comp. L. Q. 437 (1987).


party choice.86 Similarly, the Sri Lankan Act87 states that the tribunal’s power todetermine the substantive law via the application of the appropriate conflict oflaws principle will be possible ‘only to the extent agreed to by the parties’. Thelaw is therefore silent as to any possible alternative available to the parties whenthe tribunal applies the conflicts rules in order to determine the substantive law.

4 CLOSING REMARKS

The law and practice of international arbitration has come a long way in Asia.As isshown by the discussion above, the reasons for this development can be attributedmainly to the modernization of arbitration laws and the general judicial attitude ofthe national courts to support and promote arbitration taking place in theirrespective countries. However, unnecessary judicial intervention to supervise(rather than to support) and reluctance to uphold the pro-enforcement philosophyof the New York Convention in some jurisdictions are still matters of concern. Itis an accepted fact that the lack of uniform rules on conflict of laws in relation tointernational commercial arbitration affects the predictability of internationalcommercial transactions.Therefore, there is a current need to reconcile these rulesin accordance with the commercial realities and establish certain standards of bestpractices through awards, case law and academic writings. However, any departurefrom the international standards of conflict of laws methods will hamper thearbitral regimes and the prospects of trade and investment in the region. Hence, itis important for the domestic courts and national legislation to embrace theinternationally set standards for applying the choice of law process whenharmonizing the conflicts principles in order to preserve an Asian internationalarbitration culture.

86 Article 56(2) of the Arbitration law (Law No. 30 of 1999) simply provides for party autonomy inselecting the governing law. Some commentators suggest that, in the absence of party choice,Indonesian law would apply as the default method, supra n. 2.

87 See s. 24(3) of Arbitration Act No. 11 of 1995; the Sri Lankan Arbitration Law provides for themaximum extent of party autonomy. Section 24(2) provides that failing any such designation (of theapplicable law) by the parties, the arbitral tribunal shall apply the law determined by the conflict oflaws rules which it considers applicable. However, s. 24(3) provides that this provision shall apply ‘onlyto the extent agreed to by the parties.’ The question then is what will happen if the parties haveneither chosen a particular system of substantive law nor opted for the conflict of laws rules?


General Editor Dr. Michael J. Moser

Notes and Current Developments Editor Dominique Hascher

Assistant Editor Friven Yeoh

Advisory Board Dominique Brown-BersetProfessor Dr. Bernard HanotiauMichael Hwang S.C.Professor Dr. Gabrielle Kaufmann-KohlerDr. Wolfgang KühnToby Landau Q.C.Ramon MulleratDr. Horacio A. Grigera NaónLucy ReedSamir A. SalehAudley SheppardAbby Cohen SmutnyDorothy Udeme UfotV.V. Veeder Q.C.

All correspondence should be addressed to:Dr. Michael J. Moser

Journal of International Arbitrationc/o Hong Kong International Arbitration Centre

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International Commercial Arbitration in Asia and the Choice of Law Determination

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