Conflict of Laws and Arbitral Discretion
The Closest Connection Test
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ISBN:
9780198787440
Publication date:
14/08/2017
Hardback
384 pages
We sell our titles through other companies
Disclaimer :You will be redirected to a third party website.The sole responsibility of supplies, condition of the product, availability of stock, date of delivery, mode of payment will be as promised by the said third party only. Prices and specifications may vary from the OUP India site.
ISBN:
9780198787440
Publication date:
14/08/2017
Hardback
384 pages
Benjamin Hayward
Rights: OUP UK (Indian Territory)
Benjamin Hayward
Description
Arbitration is the dispute resolution method of choice in international commerce, but it rests on a complex legal foundation. In many international commercial contracts, the parties will choose the law governing any future disputes. However, where the parties do not choose a governing law, the prevailing approach in arbitration is to afford arbitrators broad and largely unfettered discretion to choose the law considered most appropriate or most applicable. The uncertainty resulting from this discretion potentially affects the parties' rights and obligations, the performance of their contract, the presentation of their cases, and negotiations undertaken to settle their disputes.
In this text, Dr Benjamin Hayward critically reviews the prevailing approach to the conflict of laws in international commercial arbitration. The text adopts a focused and detail-oriented analysis - being based on a study of more than 130 sets of arbitral laws and rules from around the world, and drawing heavily on arbitral case law. Nevertheless, it remains both practical and accessible, taking as its focus the needs and expectations of commercial parties, who are the ultimate users of international commercial arbitration.
This text identifies the difficulties that result from resolving conflicts of laws through broad and unconstrained arbitral discretions. It establishes that a bright-line test would be a preferable way to resolve arbitral conflicts of laws. Specifically, it recommends a modified Art. 4 Rome Convention rule as the ideal basis for law reform in this area of arbitral procedure.
About the Author
Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, Monash Business School, at Monash University. Dr Hayward's teaching and research is focused on international commercial law, particularly international commercial arbitration law and the international sale of goods, and he has previously published in both areas. His teaching and research work has been recognized by the receipt of six university awards since 2010. Dr Hayward has presented his work at seminars and conferences both in Australia and internationally and he has a particular interest in the interactions and applications of law in international commercial arbitration.
Benjamin Hayward
Table of contents
1: Introduction and Context
2: The Current Regulation of Conflicts of Laws in International Commercial Arbitration
3: Identified Issues in the Current Regulatory Regime
4: A Proposed Solution: A Bright-Line Test
5: A Proposed Bright-Line Test: The Closest Connection Test
6: A Proposed Closest Connection Test: The Modified Art. 4 'Rome Convention' Rule
7: Conclusion
Benjamin Hayward
Features
- Proposes a compelling normative solution to a problem at the cross-section of international arbitration and the conflict of laws
- Compares more than 100 past and present arbitral rules with a breadth and depth of research unmatched by other contributions on this topic
- Offers a comprehensive analysis that is up-to-date and covers the current developments in the area
Benjamin Hayward
Description
Arbitration is the dispute resolution method of choice in international commerce, but it rests on a complex legal foundation. In many international commercial contracts, the parties will choose the law governing any future disputes. However, where the parties do not choose a governing law, the prevailing approach in arbitration is to afford arbitrators broad and largely unfettered discretion to choose the law considered most appropriate or most applicable. The uncertainty resulting from this discretion potentially affects the parties' rights and obligations, the performance of their contract, the presentation of their cases, and negotiations undertaken to settle their disputes.
In this text, Dr Benjamin Hayward critically reviews the prevailing approach to the conflict of laws in international commercial arbitration. The text adopts a focused and detail-oriented analysis - being based on a study of more than 130 sets of arbitral laws and rules from around the world, and drawing heavily on arbitral case law. Nevertheless, it remains both practical and accessible, taking as its focus the needs and expectations of commercial parties, who are the ultimate users of international commercial arbitration.
This text identifies the difficulties that result from resolving conflicts of laws through broad and unconstrained arbitral discretions. It establishes that a bright-line test would be a preferable way to resolve arbitral conflicts of laws. Specifically, it recommends a modified Art. 4 Rome Convention rule as the ideal basis for law reform in this area of arbitral procedure.
About the Author
Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, Monash Business School, at Monash University. Dr Hayward's teaching and research is focused on international commercial law, particularly international commercial arbitration law and the international sale of goods, and he has previously published in both areas. His teaching and research work has been recognized by the receipt of six university awards since 2010. Dr Hayward has presented his work at seminars and conferences both in Australia and internationally and he has a particular interest in the interactions and applications of law in international commercial arbitration.
Table of contents
1: Introduction and Context
2: The Current Regulation of Conflicts of Laws in International Commercial Arbitration
3: Identified Issues in the Current Regulatory Regime
4: A Proposed Solution: A Bright-Line Test
5: A Proposed Bright-Line Test: The Closest Connection Test
6: A Proposed Closest Connection Test: The Modified Art. 4 'Rome Convention' Rule
7: Conclusion
