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CS Professional · Arbitration, Mediation and Conciliation · Conceptual Framework of International Commercial Arbitration

An international commercial arbitration has its place in India. The contract states that the 'law of Japan' governs the substance of the dispute and is silent on conflict of laws rules. How should the tribunal treat this designation?

The tribunal treats the designation as referring directly to Japan's substantive law, not its conflict of laws rules, unless the parties expressed otherwise. This applies to international commercial arbitration with its place in India; deciding ex aequo et bono would require express authorisation from the parties.

  1. AAs referring to Japanese substantive law, not its conflict of laws rules, unless otherwise expressedCorrect
  2. BAs referring to Japan's conflict of laws rules first, then the substantive law of the country they point to
  3. CAs ignored, because Indian substantive law must apply to every arbitration seated in India
  4. DAs authorising the tribunal to decide ex aequo et bono

Explanation

For international commercial arbitration with its place in India, a designation of the law of a given country is construed, unless otherwise expressed, as directly referring to that country's substantive law and not its conflict of laws rules. Indian law applies mandatorily only in non-international arbitrations, and ex aequo et bono needs express authorisation.

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