Limit search to available items
Record 9 of 10
Previous Record Next Record
Book Cover
Book
Author Hayward, Benjamin, author

Title Conflict of laws and arbitral discretion : the closest connection test / Benjamin Hayward
Edition First edition
Published Oxford : Oxford University Press, 2017

Copies

Location Call no. Vol. Availability
 MELB  KC 2000 Hay/Col  AVAILABLE
 ADPML SPDU  341.522 Hay/Col  LIB USE ONLY
Description lvii, 319 pages ; 24 cm
regular print
Series Oxford Private International Law Series
Oxford private international law series.
Contents Contents note continued: B.Evidence of the Importance of Substantive Certainty -- C.Substantive Certainty and the Current Regulatory Regime -- VI.The Case for Reform -- I.Introduction -- II.Perspectives from General Regulatory Theory -- A.Law and Economics as an Organizing Framework -- B.Rules, Standards, the Current Regulatory Regime, and the Law's Underlying Certainty and Flexibility Tension -- C.The Coase Theorem, and Transaction Costs in International Trade -- D.Transaction Costs-At the Time of Dispute Resolution -- E.Transaction Costs-At the Time of Contracting and During Contractual Performance -- F.Transaction Costs-Accessing Professional Legal Advice -- III.Perspectives from the Features and Existing Regulation of International Commercial Arbitration -- A.Perspectives-The General Features of International Commercial Arbitration -- B.Perspectives-Specific Examples in Arbitration's Regulation -- IV.The Case for a Bright-Line Test -- I.Introduction --
Contents note continued: G.Further Modifying the Art 4 Rome Convention Rule-Evenly Distributed Connecting Factors, and the Nature of the Closest Connection Sought -- H.A (Modified) Art 4 Rome Convention Rule as the Optimal Conflicts of Laws Rule in International Commercial Arbitration -- X.Conclusion -- I.Introduction -- II.Rethinking the Conflict of Laws in International Commercial Arbitration -- III.Implementing the (Modified) Art 4 Rome Convention Rule -- A.Reforming Arbitration Rules -- B.Reforming Arbitral Laws -- C.Other Possible Implementation Methods -- IV.How Dismal is the Swamp, and How Habitable Might it Become? -- I.Procedural Background -- II.The Parties' Dispute Raises a Conflict of Laws -- III.The Governing Substantive Law is to be Determined in Accordance with Art 35(1) UNCITRAL Rules 2010 -- IV.This Tribunal Should Apply the Closest Connection Test, and Find That the Law of [State X] Applies -- V.Request for Relief -- I.Procedural Background --
Contents note continued: II.Assessing the Place of the Closest Connection Test in International Commercial Arbitration -- III.Category A-Rules Out-of-favour in the Modern International Commercial Arbitration Environment -- A.The Conflicts Rules of the Seat of Arbitration-Automatic Application -- B.The Substantive Law of the Seat of Arbitration-Through a Conflicts Analysis -- C.The Conflicts Rules Most Closely Connected to the Dispute -- D.Conflict of Laws Rules Found in a Relevant International Instrument -- E.The Conflicts Rules of the State Which Would Have Had Jurisdiction, the Conflicts Rules of the Arbitrator's Home Jurisdiction, and the Conflicts Rules of the Place of Likely Enforcement -- IV.Category B-Rules Enjoying Contemporary Endorsement but Recognized as Controversial -- A.The Conflicts Rules of the Seat of Arbitration- Discretionary Application -- B.General Principles of the Conflict of Laws -- C.Default Application of the Lex Mercatoria --
Contents note continued: II.The Arbitral Tribunal's Conflict of Laws Determination Was to be Made in Accordance with Art 28(2) Model Law 2006 -- III.The Arbitral Tribunal Identified [State X] Law as Applicable on the Basis that it Was the Most Appropriate Law -- IV.The Award Must be Set Aside as the Arbitral Tribunal Erred in its Conduct of the Proceedings -- V.Request for Relief -- I.Procedural Background -- II.Determining the Governing Substantive Law-The Legal Framework -- III.Determining the Governing Substantive Law-The Parties' Agreement -- IV.The Arbitral Tribunal's Order
Contents note continued: III.Provisions Regulating the Resolution of Conflicts of Laws in International Commercial Arbitration-A New Scheme of Classification -- A.The Voie Indirecte -- B.The Voie Directe -- C.Observed Trends in the Adoption of Private International Law Provisions -- IV.Potentially Applicable Conflict of Laws Rules in International Commercial Arbitration -- A.The Conflicts Rules of the Seat of Arbitration -- B.The Substantive Law of the Seat of Arbitration -- C.The Conflict Rules Most Closely Connected to the Dispute -- D.The Substantive Law Most Closely Connected to the Dispute -- E.The Cumulative Application of Connected Conflicts Rules -- F.Conflict of Laws Rules Found in a Relevant International Instrument -- G.The Conflicts Rules of the State Which Would Have Had Jurisdiction -- H.The Conflicts Rules of the Arbitrator's Home Jurisdiction -- I.The Conflicts Rules of the Place of Likely Enforcement -- J.General Principles of the Conflict of Laws --
Contents note continued: IX.An Evaluation of the Six Variations, and the Case for a (Modified) Art 4 Rome Convention Rule -- A.Disregarding the Characteristic Performance Tie-breaker, the Escape Clause Variation, and the Bare Characteristic Performance Rule -- B.The Bare Closest Connection Test, the Characteristic Performance Variation, and the Supplementary Closest Connection Test -- C.The Characteristic Performance Variation/Supplementary Closest Connection Test, and the Bare Closest Connection Test, Compared -- D.The Characteristic Performance Variation, and the Supplementary Closest Connection Test, Compared-Theory and Scholarship -- E.Modifying the Art 4 Rome Convention Rule-Clarifying the Strength of the Characteristic Performance Presumption -- F.The Characteristic Performance Variation, and the Supplementary Closest Connection Test, Compared-Inductive Analysis --
Contents note continued: V.Category C-Mainstream Approaches -- A.The Substantive Law Most Closely Connected to the Dispute -- B.The Cumulative Application of Connected Conflicts Rules -- C.The Direct Application of Substantive Law -- VI.The Closest Connection Test as the Optimal Conflict of Laws Rule in International Commercial Arbitration -- VII.Conclusion -- I.Introduction -- II.Which Closest Connection Test? Choosing a Bright-Line Conflicts Rule Among the Closest Connection Test's Six Variations -- III.Variation 1: The Bare Closest Connection Test -- A.The Bare Closest Connection Test Explained -- B.Sources of the Test -- C.Theoretical Implications -- D.Practical Implications -- IV.Variation 2: The Closest Connection Test with a Presumption Based on Characteristic Performance -- A.The Characteristic Performance Variation Explained -- B.Sources of the Test -- C.Theoretical Implications -- D.Practical Implications --
Contents note continued: V.Conclusion -- I.Introduction -- II.Discretion as the Key Feature of the Current Regulatory Regime -- A.The Pure Voie Indirecte-Discretion in the Choice of Conflicts Rule -- B.The Pure Voie Directe-Discretion in the Direct Choice of Law -- C.The Pure Voie Directe and the Guided Voie Directe- Discretion in the Use of Conflicts Rules -- D.The Pure Voie Directe-Discretion Through Implicit Conflicts Analyses -- III.A Critical Analysis of the Justifications Given for Arbitral Discretion in Resolving Conflicts of Laws -- A.Arbitral Discretion as an Extension of Party Autonomy -- B.Arbitral Discretion as Supporting the Expectations and Intentions of the Parties -- C.Arbitral Discretion as a Manifestation of Arbitration's Procedural Flexibility -- IV.A Theoretical Critique of the Current Regulatory Regime -- V.A Practical Critique of the Current Regulatory Regime -- A.Procedural Flexibility and Substantive Certainty Revisited --
Contents note continued: V.Variation 3: The Closest Connection Test with a Characteristic Performance Tie-breaker -- A.The Characteristic Performance Tie-breaker Explained -- B.Sources of the Test -- C.Theoretical Implications -- D.Practical Implications -- VI.Variation 4: The Closest Connection Test with an Escape Clause -- A.The Escape Clause Variation Explained -- B.Sources of the Test -- C.Theoretical Implications -- D.Practical Implications -- VII.Variation 5: The Closest Connection Test as a Supplement to Hard-and-Fast Rules for Specific Categories of Case -- A.The Supplementary Closest Connection Test Explained -- B.Sources of the Test -- C.Theoretical Implications -- D.Practical Implications -- VIII.Variation 6: The Bare Characteristic Performance Rule -- A.The Bare Characteristic Performance Rule Explained -- B.Sources of the Test -- C.Theoretical Implications -- D.Practical Implications --
Machine generated contents note: I.Introduction -- II.Background -- A.International Commercial Arbitration as a Preferred Dispute Resolution Mechanism -- B.Party Autonomy in International Commercial Arbitration -- C.The Manifestations of Party Autonomy -- D.Party Autonomy in Relation to the Applicable Law -- E.The Conflict of Laws in International Commercial Arbitration -- III.The Importance of Conflicts of Laws Questions in International Commercial Arbitration -- A.The Prevalence of Conflicts of Laws -- B.Legal Issues Affected by the Resolution of Conflict of Laws Questions -- IV.The Purposes of Conflict of Laws Rules -- V.The Bases of Conflict of Laws Analyses -- VI.Outline in Context -- I.Introduction -- II.The Legal Framework for Resolving Conflict of Laws Questions in International Commercial Arbitration -- A.Domestic Law -- B.Arbitration Rules -- C.International Conventions -- D.Party Autonomy --
Summary 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. 00Nevertheless, 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
Notes Formerly CIP. Uk
Bibliography Includes bibliographical references and index
Has Indexes P
Subject Conflict of laws.
Genre/Form Commercial arbitration agreements.
LC no. 2016960864
ISBN 0198787448
9780198787440