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CS Professional · Arbitration, Mediation and Conciliation · International Law of Arbitration

Sundaram Steels (Chennai) and Oakfield Ltd (UK) have an international commercial arbitration seated in Delhi. Their contract states that the dispute shall be governed by the law of England. The tribunal must decide how to read this. What is the correct approach under section 28?

The tribunal applies English substantive law directly. Under section 28(1)(b)(ii), a designation of a country's law is read as referring to its substantive law and not its conflict of laws rules, unless the parties expressed otherwise. The Delhi seat does not displace the chosen law.

  1. AApply English conflict of laws rules first and then the law they point to
  2. BApply the substantive law of England, not its conflict of laws rules, unless the parties expressed otherwiseCorrect
  3. CApply Indian substantive law because the seat is Delhi
  4. DApply whatever law the tribunal finds appropriate, ignoring the designation

Explanation

Section 28(1)(b)(ii) states that a designation of the law of a given country is construed, unless otherwise expressed, as referring directly to that country's substantive law and not its conflict of laws rules. Option A reverses this. Options C and D ignore the parties' designation, which section 28(1)(b)(i) requires the tribunal to follow.

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