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REFERENCES BY DR. ALI KHALED QTAISHAT

S.K. Chawla, Law of Arbitration and Conciliation: Practice and Procedure, 2nd Edn., Eastern Law House (2004) at p. 7.

International Commercial Arbitration between parties of different countries has long been recognized by the business community and the legal profession as a Suitable means of setting trade controversies out of court. Encyclopaedia Britannica, Macropedia (15th edn.) Vol. 1 p. 1074.

Ole Lando. The Lex Mercatoria in International Commercial Arbitration, 34 J.Int'l. Art. 28 (1985) p. 110.

For advantage of international commercial arbitration as compared to court litigation in regard to enforcement, see F. G. Baxter, International Business Disputes, 39 ICLQ 294, (1990); a contra view is expressed by some Australian writers who maintain that except in limited areas, arbitration is generally favoured neither by the legal profession nor by commercial interest, and is regarded as cumbersome, expensive and less efficient, in most cases than litigation. See Giovanni E.Longo, Towards a “Common Core” of Legal Rules on Commercial Arbitration, 59 Aus, L. J. 407(1985)

A clause inserted in a contract providing for compulsory arbitration in case of dispute as to rights or liabilities under it, and which oust the court's jurisdiction. Blacks Law Dictionary. (5th edn 1979) at p. 96

Alex Lando, The Law Applicable to the Merits of The Dispute, in Contemporary problems in International Arbitration, 15 Arb. Int'l 22. (1998) p. 86.
This includes UNCITRAL Model Law on International Commercial Arbitration, UNCITRAL Arbitration Rules, ICC Rules of Arbitration, UNCITRAL Model arbitration Law (MAL) etc.

A. Redfern & M. Hunter, Law and Practice of International Commercial Arbitration (1986), pp. 72-75.

B. Wortmann, Principles of Law in International Commercial Arbitration, 101 Harv. L. Rev. 1816 (1988).

M. C. Clelland, Toward a More Natural System of International Commercial Arbitration. The Establishment of Uniform Rules of Procedure and the Elimination of the Conflict of Laws Question, 5 J. Int'l L. 169. (1980) p11.

Parties frequently feel that a foreign national court would favour the opposing party from that country. See Higgim and Brown, Pitfalls in International Commercial Arbitration, 35 Buis. Law 1035 (1980).

B. Jones, Three Centuries of Commercial Arbitration in New York - A Brief summary, 72 ICLQ 18 (1988) pp. 169-172.

Giovanni B. Longo, "Towards a Common Core of Legal Rules on Commercial Arbitration,”59 A. L. J. 407(1985), wherein he deals with the Tug- of-war between courts and Arbitration Milieus.

International Commercial Arbitration would be governed by the rules of conflict of laws or rules resulting from the agreement of parties as distinguished from the rules of Public International Law which result in the customs and usages of nations, the agreement of parties of multinational convention.

Art 28 (2). Also Art 33 (1) of the UNCITRAL Arbitration Rules.

For eg., the Chairman in the Lausanne Interim Meeting of the International Council for Commercial Arbitration stated: ‘The formula retained by the Draft Model Law appeared objectionable, firstly in its exclusive reference to the “Conflictual method” in contradistinction to the pluralisme des methodes generally accepted by the modern science of private International Law, secondly, by its rigid character, in sharp contrast to the variety of approaches and the flexibility displayed for many years by modern arbitration practice”. See International Council for Commercial Arbitration, Congress, Series 2, UNCITRAL’S Project for a Model Law on International Commercial Arbitration (1984), pp. 197-198.

Redfern and Hunter, Law and Practice of international Commercial Arbitration (1986), p.95; wherein a doctrine which has many powerful advocates, particularly amongst German, French and Swiss lawyers is mentioned and has found support both in the rules of arbitral institution and in the practice of international arbitration. The doctrine provides that unlike the judge of a national court, an international arbitral tribunal is not bound to follow the conflict of law rules of the country in which it has its seat.

Saphire International Petroleum Ltd. v. The International Iranian Oil Company, 13 I.C.L.Q. 1011 (1964).

Supra Note 8 at pp. 95-96.

F.G. Baxter, International Business Disputes, 39 I.C.L.Q. 288 (1990).

Halsburys Laws of England, Vol. 8, p. 407.

Ibid.

Vita Food Products Inc. v. Unus Shipping Co. Ltd., 1 All E.R. (1939) p. 521, Lord Wright stated that intention is objectively ascertained, and if not expressed, will be presumed from the term of the contract and the relevant surrounding circumstances.

Sayer v. International Drilling Co. N. V., 3 All E. R. 163, (1971) p. 166, Lord Denning clarified. It is obvious that we cannot apply two systems of law in a single case. Then the question arises- what is the proper law by which to determine the issues in this case? It is the system of law with which the issues have the closest connection.

Supra Note 21 at p. 409.

Supra Note 24 at p. 168.

Ibid at p. 169.

Royal Exchange Assurance Corp. v. Sjoforsakruigs Akt Vega, (1902)2 KB 384 at 394.

The intention must be that of both parties and not of one alone. In R. v. International Trustee for the Protection of Bondholders AKT, 2 All E. R. 164, (1937) p. 180. Lord Russell of Killowen comments : “The phrase ‘the proper law of a contract’ is a phrase which I conceive bears the meaning attributed to it in Professor Dicey’s r. 155, viz:” “the law or laws by which the parties to a contract intended.., the contract to be governed; or (in other words) the law or laws to which the parties intended... to submit themselves.”

Ibid.

Chartered Mercantile Bank of India, London and China v. Netherlands India Steam Navigation Co. Ltd., 10 Q.B.D. 521 (1883). MC Nair J has stated - “The question then is what is the proper law of the contract, or to relate the general question to the particular problem, within the framework of what monetary or financial system should the instrument be construed. On the assumption that express reference is made to none, the question becomes a matter of implication to be derived from all the circumstances of the transaction.”

Coast Lines Ltd. V. Hudig & Veder Chartering NV, 1 All E.R. 451 (1972).

Ibid.

Ibid.

Ibid.

Ibid.

A. v. International Trustee for the protection of Bondholders AG, 2 All E.R. (1937) 164. Wherein the House of Lords rejecting the lower court’s proposition that when a Government makes a contract in a foreign country, the law of that government governs the contract in every case, and held that such a case is no exception to the general rule that the law applicable to a contract not relating to immovables is governed by the intention of the parties.

Cheshire’s Private International Law, (4th edn.) p. 658, where he arrives at a conclusion that the questions of remoteness of damage should be governed by the proper law of the Contract, whereas the qualification of damage, which according to the proper law is not too remote, should be governed by the lex fori. See also Dicey, Conflict of Laws, (6th ed.) p.649.

Adams v. National Bank of Greece, 2 All E. R. 421 (1960).

Supra Note 37.

Ibid.

Deutsche Schachtbau - Und Tiefbohrgesellschaftu v. R Al-Khaimah National Oil Co. 1 AC 295 (1990).

Article 13 (3) of ICC Rules of Arbitration.

Supra Note 43.

DST v. Raknoc, 1 AC 315 (1990).

Clive Schmitthoff, Choice of Law in International Commercial Law, 6 J.B.L. 169 (1987).

Ibid.

Compagnie d’ Armement Maritime SA V. Compagnie Tunnisienne de Navigation SA., 3 All E.R. 71 (1970).

Supra Note 47.

A Redfern and M. Hunter, Law and Practice of International Commercial Arbitration, 4th edn. (2004) p. 66.

Ibid at p. 70; See Danilawicz, The choice of Applicable Law in International Arbitration, 9 Hastings Int’l and Comp. Law Rev. 237 (1992). Sea also Croff, “The Applicable Law in an International Commercial Arbitration : Is it still a Conflict of Laws Problem” 16 J.Int’l Law 623(1982) stating that parties to a contract often do not include a choice-of- law clause for a variety of reasons.

Carlos Calvo, a nineteenth century Argentine jurist, developed the doctrine that a foreigner doing business in a country is entitled only to non discriminatory treatment, and the foreigners by conducting such business implied their consent to be treated equally with nationals. H. Steiner and D. Vagts, Transnational Legal Problems (5th Edn., 2000) p. 533.

The principle exposed by Calvo is directly conflicting with that of Kautilya who has emphasised that foreigners have to be treated specially and preferentially. “He should encourage the import of goods produced in foreign lands by (allowing) concessions. And to those (who bring such goods) in ships and caravans, he should grant exemptions (from taxes) that would enable a profit (to be made by them). And no law, - Suit in money matter (should be allowed) against foreign traders, except such as are members (of native concerns) and (their) associates. See Kautilya's Arthasasthra, An English Translation by P. Kangle 2nd edn, University of Bombay (1972), p.128. The historical legacies of the Calvo doctrine and the Latin Americans’ strict defence of national sovereignty have been transformed into a refusal to accept the application of general principles of international law in the Latin American context. See "International Arbitration.”, 101 Harv. L. Rev. 1821 (1988).

Croff, The Applicable Law in an International Commercial Arbitration: Is it still a conflict of Law Problem?, 16 Int’l. Law. J 623 (1982), (stating that an arbitrator needs a set of national rules to fill the gaps within broader standards.

Thus for eg:- a Swiss arbitrator in a dispute between A New York Corporation and the German Government may look to the laws of New York, Switzerland and Germany. When the different laws lead to the same result, the arbitrator may avoid applying one law, citing the existence of a false conflict. Ibid. pp. 629-30.

Arthur Taylor Vou Mehren, Special Substantive Rules for Multistate Problems : Their Role and Significance in Contemporary Choice of Law Methodology, 88 Harv. L. Rev. 182 (1975).

Supra Note 55, p. 624.

B. Brown, General Principles of Law in International Commercial Arbitration, 101 Harv. L. Rev. 1824 (1988).

Supra Note 8, p. 92.

Texaco Overseas Petroleum Co. v. Government of the Libyan Arab Republic, (Hereinafter Topco Decision) 17 I .L. M.,15-16 (1978).

British Exploration Co. (Libya) v. Government of Libyan Arab Republic, Award of October 10, 1973; 53 Int’ L. Rep 297. (1979) States that the main principle in the 1969 vienna Convention on the Law of Treaties is Pacta Sunt Servarida.

Ibid, at p. 332.

Revere Copper & Brass, Inc. v. Overseas Private Inc. Corp., American Arbitration Association Award of August 24, 1978, 17 I. L. M. 1321, (1978).

Ibid.

‘Force majeure is a superior or irresistible force, particularly an event the cause of which is outside the control of the parties and could not be avoided by due care. See Black’s Law Dictionary (9th edn. 2002), at p. 58.

Peter Brown, International Arbitration, 101 Harv. L. Rev. 1828 (1988) (what constitutes force majeure is not agreed upon even now. Almost all national laws deal with the effect of vis major in contracts so specifically that the unspecified aspect of this in international field remains a lot to be decided, before making it a generally accepted principle).

Westland Helicopters Ltd. (U. K.) v. Arab Org. for Industrialization, ICC Interim Award of March 5, 1984, 23 I.L.M. 1071, (1984).

Supra Note 61, at pp. 32-36.

Supra Note 8, at pp. 72.

Under the traditional choice of law rule applicable in Australia, a contract will be governed by the law most closely connected with the transaction. Then the determination of this law can be very difficult. Prof. Michael Pryles, “Drafting Arbitration Agreements,” 67 A.L.J 514 (1993).

Art. 28(2) reads thus: Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of law rules which it considers applicable.

Supra Note 8; at p. 78.