Arbitration—substantive law of the dispute (England and Wales)
Produced in partnership with Charles Spragge of Druces LLP
Arbitration—substantive law of the dispute (England and Wales)

The following Arbitration guidance note Produced in partnership with Charles Spragge of Druces LLP provides comprehensive and up to date legal information covering:

  • Arbitration—substantive law of the dispute (England and Wales)
  • The law applicable to the substance of the dispute
  • Why does the choice of applicable law matter?
  • How is the applicable law of the contract determined?
  • Other Considerations
  • Floating law clauses
  • Floating choice of forum clauses

This Practice Note looks at which laws an arbitral tribunal, seated in England and Wales or Northern Ireland, should apply when making its substantive award and what rules it should follow to determine what those laws are where the parties have made no express choice. It specifically addresses international arbitrations, which, for these purposes, means arbitrations in which one or more of the parties is domiciled outside England and Wales or where the contract is to be performed overseas.

The law applicable to the substance of the dispute

In general terms, the applicable law of a contract is the system of private law that defines the rights and obligations of the parties to the contract and prescribes the remedies available from a court or tribunal for failure to perform any of those obligations.

In the language of European Regulation on the Law Applicable to Contractual Obligations (Rome I) Council Regulation (EC) 593/2008, the applicable law governs matters such as interpretation, performance, the consequences of the breach, the various ways of extinguishing contractual obligations and the consequences of nullity.

The applicable law is also the body of law that a tribunal must apply in deciding the dispute referred to it unless the parties have agreed that other considerations are to apply. The parties may agree what these other considerations are or may agree that