Brief Remarks on the Applicability of the International Uniform Substantive Law Conventions in International Arbitration
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Description
According to one commentator, in arbitration, choice of law plays a smaller role than might be expected from the large volume of scholarly writing on the subject. This fact, too, I believe suggests something about the law in general—substantial similarity in result reached by legal systems with quite different points of departure, and convergence in the international arena that seems to be helped along by the process of [arbitration]. In this author’s view, these assertions cannot be shared. Arbitrators are not the catalysts of convergence, as their awards do not have a modifying impact on the domestic law they apply. And the “substantial similarity in result reached by legal systems with quite different points of departure” is, if nothing else, overstated. “While such characterization may be accurate in some cases, [. . .] there are [many] cases where substantial differences exist with respect to possible competing laws”. To give just one example, although one that today is very relevant in practice, the success of a party’s claim that it be exempt from liability on the basis of economic impossibility, frustration of purpose of the contract or hardship caused by the Coronavirus pandemic and its consequences will depend on the applicable law or rules of law, because throughout the various legal systems there still is “a marked diversity in the recognition of [such] institutions”. Not only, the 1980 United Nations Convention on Contracts for the International Sale of Goods (“CISG”) also addresses some of the foregoing issues, and it does so in a way that often differs from how these issues are dealt with in domestic legal systems.
Source Publication
Reflections on International Arbitration: Essays in Honour of Professor George Bermann
Source Editors/Authors
Julie Bédard, Patrick W. Pearsall
Publication Date
2022
Recommended Citation
Ferrari, Franco, "Brief Remarks on the Applicability of the International Uniform Substantive Law Conventions in International Arbitration" (2022). Faculty Chapters. 550.
https://gretchen.law.nyu.edu/fac-chapt/550
