Ben Hayward

Thesis: Arbitral Discretion in Resolving Conflicts of Laws

Ben Hayward

BCom, LLB (Hons) Deakin, GradCertHigherEd Deakin, Australian Lawyer

International commercial arbitration is widely regarded as the preferred means of resolving cross-border disputes. One of the advantages of international commercial arbitration as a dispute resolution mechanism is the ability of parties to choose the substantive law that will govern the merits of their dispute. This choice is often made through a choice of law clause contained in the parties' main contract. However, for a variety of reasons, parties to an international commercial contract may not always select the governing law. Where this is the case and a dispute arises, the task of identifying the governing substantive law falls to the arbitrators.

My thesis analyses the way in which arbitrators resolve conflict of laws questions with respect to the governing substantive law in international commercial arbitration. In particular, it critically analyses the discretion conferred on arbitrators - arguing that a bright line test whereby arbitrators apply the most closely connected law is an appropriate model for law reform.



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