PROCEDURAL LAW ROLE IN THE INTERNATIONAL COMMERCIAL ARBITRATION: SOME REMARKS
Summary: 1. Introduction. – 2. Distinguishing between applicable substantive and procedural law in international commercial arbitration. – 3. Scope of application of procedural law. – 4. Autonomy of will and procedural law. – 5. The rights of the parties to choose the procedural law. – 6. Choice of procedural law. – 7. The influence of the seat of arbitration on the choice of procedural law. – 8. Conclusions.
Abstract
Background: One of the most important features of international commercial arbitration is the autonomy of the will of the parties to a foreign economic dispute. Such autonomy consists of the possibility of independence to resolve issues of a dispute between the parties to such a contract and those issues that already arise during arbitration proceedings. One of the most significant issues that are the subject of autonomy of the will is the choice of the rules of procedural law. In this note, we studied the procedural rules governing the activities of international commercial arbitration, which influence the course of arbitration proceedings, since the arbitral tribunal usually refers to them when determining the number of key issues, starting with questions about whether to refer the dispute to arbitration or not, whether to determine interim measures and also with respect to the arbitral award itself.
Methods: This study was based on an analysis of Ukraine’s national law and some doctrine; examples of implementation of the New York convention were analysed.
Results and Conclusions: Although the parties’ freedom of choice is a generally accepted principle of international commercial arbitration, it can usually be limited by the imperative norms and public order of a particular country. The trend of moving the international arbitration practice away from using lex loci arbitri was underlined. This trend reflects the avonomy of the parties and can also be considered a significant challenge of lex loci arbitri.
About Authors
Panchenko Viktoriia
Cand. of Science (Equiv. of PhD in Law), Associate Professor of Private International Law and Comparative Law Department, Yaroslav Mudryi National Law University, Kharkov, Ukraine v.v.panchenko@nlu.edu.ua vika09panchenko@gmail.com http://orcid.org/0000- 0002-9348-4547
Corresponding author, responsible for writing and research (Use Credit taxonomy). The corresponding author is responsible for ensuring that the descriptions and the manuscript are accurate and agreed by all authors.
Competing interests: Any competing interests were included by authors. Disclaimer: All authors declared that their opinions and views expressed in this manuscript are free of any impact of any organizations.
Translation: The content of this article was translated with the participation of third parties under the authors’ responsibility.
Funding: The author(s) received no financial support for the research, authorship, and/or publication of this article. Funding of this publication was provided by authors.
Managing editor – Dr. Serhii Kravtsov. English Editor – Mag. Anastasiia Kovtun.
Copyright: © 2022 Panchenko Viktoriia, Kornieva Polina and Cherevatenko Iryna. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
Kornieva Polina
PhD in Law, Assistant Professor at the Department of Private International Law and Comparative Law, Yaroslav Mydryi National Law University, Ukraine p.m.kornyeva@nlu.edu.ua korneva91@ukr.net http://orcid.org/0000-0002-7901-9008 Co-author, responsible for writing and data collection.
Cherevatenko Iryna
Cand. of Science (Equiv. of PhD in Law), Associate Professor of Civil Justice and Advocacy Department, Yaroslav Mudryi National Law University, Kharkiv, Ukraine i.m.cherevatenko@nlu.edu.ua https://orcid.org/0000-0003-2937-1529 Co-author, responsible for writing and data collection.
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How to cite it?
- Panchenko V, Kornieva P, Cherevatenko I ‘Procedural Law Role in the International Commercial Arbitration: Some Remarks’ 2022 4(16) Access to Justice in Eastern Europe 187-200. https://doi.org/10.33327/AJEE-18-5.4-n000437
