Substantive law of the dispute in arbitration (England and Wales)
Produced in partnership with Giles Robertson of Fountain Court
Substantive law of the dispute in arbitration (England and Wales)

The following Arbitration practice note produced in partnership with Giles Robertson of Fountain Court provides comprehensive and up to date legal information covering:

  • Substantive law of the dispute in arbitration (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 considers the laws an arbitral tribunal should apply when making its substantive award, and what rules it should follow to determine those laws where the parties have made no express choice. It assumes the tribunal is seated in England and Wales (England and English are used as convenient shorthand) or Northern Ireland. 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.

Practice Note: Applicable laws in international arbitration may also be of interest to practitioners. Guidance on applicable law in the context of civil litigation is also available: Applicable law principles—overview, Applicable law (UK regime)—overview and Applicable law (EU regime)—overview.

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 agreement. The applicable law is also the body of law that an arbitral tribunal must apply in deciding the dispute referred to it unless the parties have agreed that other considerations are to apply (section 46 of the Arbitration Act 1996 (AA 1996)). The parties may agree what these other considerations are or may agree that they are to be determined by the tribunal.

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