II. The Freedom to Choose the Laws Governing the Arbitration and to Choose Between Ad Hoc and Institutionalized Proceedings

Thanks to the predominant role of party autonomy, the parties may choose the law applicable to the substance of the dispute as well as the law they deem to fit the arbitral proceedings best. Accordingly, the law applicable to the substance of the dispute does not have to be identical to the law that will govern the arbitration proceeding.

The term “law” has a very broad connotation in this context. With respect to the substance of the dispute, it usually means that the parties may also choose rules of law to govern their contract. That means that the parties are not limited to choosing a national law, understood as the national law of a particular country. Instead, the term “rules of law” refers to anational legal rules such as transnational laws, international law principles or the rules of international conventions.

Regarding the arbitral procedure, the broad meaning of the term “law” usually means that the parties may not only agree on having their procedure governed by a national arbitration law of their choice but that they also have the freedom to design the legal framework for the arbitral proceedings themselves. Therefore, the parties may tailor their own set of procedural rules according to their needs instead of choosing a national procedural law. However, in the majority of cases in which parties opt for rules instead of a national arbitration law to govern the proceedings, the parties agree on the application of the arbitration rules of an arbitral institution. These are sets of procedural rules specifically designed to govern the arbitral procedure and are usually provided for by various arbitration institutions.

Apart from the freedom to choose the applicable law to govern the arbitral proceedings, the parties also have the autonomy to decide whether they want to have an ad hoc arbitration, i.e. an arbitration that they will have to administer all by themselves, or if they prefer to have an arbitral institution administer their proceedings. An arbitral institution will assist the parties for instance in finding suitable arbitrators, organizing the hearings or in dealing with the communications with the arbitrators in exchange for a service fee. Furthermore, arbitral institutions often provide certain services, such as deciding over the challenge of an arbitrator.

International Chamber of Commerce (ICC) that has its seat in Paris, the London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution (ICDR) with its headquarters in New York, the Singapore International Arbitration Centre (SIAC) or the German Institution for Arbitration (DIS). Institutional rules recently chosen for the Vis Moot problem are those of the ICC (2014/2015), the CEPANI Arbitration Rules (2013/2014), the CEAC Arbitration Rules (2012/2013), the CIETAC Arbitration Rules (2011/2012) and those of the Chamber of Arbitration of Milan (2010/2011).

Last modified: Friday, 23 October 2015, 7:08 PM