Arbitration is a private mechanism, but does not take place in a legal vacuum. Typically, different systems of law interact, most notably the law governing the substance of the dispute, the law governing the arbitration process itself and the law governing the arbitration agreement.

In general, the parties are free to choose for themselves the law applicable to the substance of the dispute. Under the WIPO Arbitration Rules, when the parties fail to agree on the choice of substantive law, the tribunal applies the law that it deems appropriate. The tribunal may also decide “in equity” (as amiable compositeur or ex aequo et bono), provided that the parties have expressly authorized it to do so. (Article 59)

The law applicable to the arbitration (lex arbitri or arbitral law) is the law that governs the procedural framework, such as whether a dispute is arbitrable, the availability of interim measures of protection, the conduct of the arbitration, and the enforceability of the award. Subject to such arbitral law, parties are free to designate a set of rules governing the conduct of the arbitration, such as the WIPO Rules.

The law applicable to the arbitration is usually the law of the chosen place of arbitration. For example, if that place is Geneva, Switzerland, the arbitration will be subject to Swiss arbitration law.

Thus, in determining the place of arbitration, the parties select the arbitral law. If the parties fail to reach such agreement, under the WIPO Rules, the Center decides the place of arbitration taking into consideration any observations made by the parties and the circumstances of the arbitration (Article 39). The arbitral law need not be the same as the law applicable to the substance of the dispute. A tribunal may, for example, be subject to the arbitral law of Switzerland, but may be required, by party agreement, to apply English law to the substance of the dispute.
 

Provides support to the arbitration where necessary: examples may relate to the taking of evidence or rendering of conservatory or interim measures;

Does not unnecessarily interfere with the pending arbitration. Today, most arbitral laws contain only a limited number of mandatory provisions and generally give deference to the arbitration rules chosen by the parties.
 

The validity of the arbitration agreement is normally governed by the law applicable to the contract of which it forms part, or, more generally, the law applicable to the substance of the dispute. Under the WIPO Arbitration Rules, an arbitration agreement is effective if it conforms to the law applicable to the substance or to the law applicable to the arbitration. (Article 59(c)).
 

Under the WIPO Rules, either party may select Suzanne K. Nusbaum to serve on a three arbitrator tribunal, (Art. 17(b)), or the parties may jointly request her appoint as the sole arbitrator. (Art. 16a.)

For further information, contact us.
 

The Vis Moot is held annually in Vienna and Hong Kong. Suzanne K. Nusbaum arbitrated the memoranda for the Fourteenth Annual Willem C. Vis International Commercial Arbitration Moot, in Vienna. She arbitrated both the memoranda and oral competition at Fourth Willem C Vis (East) Moot in Hong Kong.

The Vis Arbitral Moot fosters the study of international commercial law and arbitration for resolution of international business disputes, helping to train law students in methods of alternative dispute resolution. All proceedings, written and oral, are in English. Students research and write Memoranda for Claimant and Respondent for a hypothetical arbitration problem involving the UN Convention on the International Sale of Goods (CISG) and the UNCITRAL Model Law.

The 2007 case study involved complex and subtle issues of jurisdiction of the tribunal, breach of contract and mitigation of damages. In the Vis (East) Moot's oral stages, each team argued the case before an international panel of arbitrators, arguing twice as Claimant and twice as Respondent; the eight best teams then proceed to a knock-out contest, with the final hearing taking place before a very high caliber tribunal, in the presence of an audience of several hundred.

The arbitration hearings are designed to reflect real-world arbitration proceedings as far as possible. Suzanne K. Nusbaum is pleased to congratulate the 300+ students from 46 law schools from 14 jurisdictions who participated in the Vis Moot (East). The students came from all over the world to participate, including Hong Kong, the PRC, Indonesia, Thailand, India, Spain, Brazil, Australia, Germany and the United States. It was one of the highlights of her professional year to witness the outstanding achievements of the participating students, not only the award-winners but also non-native English-speaking teams and those competing for the first time.

The Vis Arbitral Moot is an event of major importance. It is the place where the next arbitration generation is being raised and molded - a place where you find the future arbitration professionals, possibly even the stars of tomorrow. It is also a place where a true transnational culture of arbitration is being developed. Suzanne K. Nusbaum was pleased and honored to be associated with and to have contributed to such a truly inspiring event.