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

Arvind Pharma Ltd (India) and Helix Biotech Corp (incorporated in the USA) agree to ICC-style institutional arbitration seated in Delhi. They designate 'the law of England' as governing the substance of the dispute, without further words. Under the Act, how will the tribunal read this designation?

The tribunal will treat the designation as referring directly to England's substantive law, not its conflict of laws rules, unless the parties expressed otherwise. This applies to international commercial arbitrations seated in India whether they are institutional or ad hoc.

  1. AAs referring to England's conflict of laws rules
  2. BAs referring directly to the substantive law of England, not its conflict of laws rulesCorrect
  3. CAs requiring the tribunal to apply Indian substantive law instead
  4. DAs an authorisation to decide ex aequo et bono

Explanation

Seat is in India and the arbitration is international commercial, so section 28(1)(b)(ii) applies: designation of a country's law is construed, unless otherwise expressed, as referring to its substantive law and not conflict rules. Institutional status does not change this. Ex aequo et bono requires express authorisation.

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