All problems relating to the law applicable to the merits of the case in international arbitration are supposed to be solved once a specific law has been chosen by the parties or selected by the arbitral tribunal. This Dossier XI of the ICC Institute of World Business law, which presents the proceedings of the 33rd Annual Meeting of the ICC Institute, held on 5 December 2013, is evidence that is not the case. The programme was prepared by Fabio Bortolotti and Pierre Mayer, two eminent members of the Institute’s Council who have abundant experience in the field. It allowed arbitration practitioners and in-house lawyers to better understand the specificity of the situation of the international arbitrator when he or she is called to apply a substantive law. This book has the same purpose. In this respect, the judge and this international arbitrator are in very different positions.

The judge’s relations with the content of the law that he or she applies are not the same whether the applicable law is their national law or foreign law. The former is known by the judge who interprets it and contributes to its creation under the control of the superior courts and on behalf of the State. Even if a foreign law is deemed less and less to be a fact, the judge continues to apply it as if it were. The maxim “jura novit curia” does not easily apply to foreign law and the judge finds out the content of such law by application of the rules of evidence of his or her national law, the lex fori. Obviously, the judge does not contribute to the evolution and to the creation of a foreign law. Last, in case the content of a foreign law has not been established, the judge has always the possibility to decide by application of the lex fori.

For the international arbitrator, there is no foreign law and there is no lex fori, as he or she has no privileged relations with a specific national legal system. This explains that, although the content of any law to be applied raises for the international arbitrator problems similar to those faced by the judge who applies a foreign law, he or she must solve them differently. First, no lex fori is available to offer the international arbitrator a fallback position in case the content of the law to be applied has not been established. Fortunately, the time when arbitrators, such as Lord Asquith of Bishopstone, felt that they could resort to their own national law to find solutions supposed to reflect international principles is over1. Second, whatever law be applied, the international arbitrator who has to interpret it is in the same position as the judge who is required to interpret a foreign law. It is the case when the law to be applied contains no clear rule for the specific problem that the arbitrator must resolve. Since economic relations and contractual practices evolve more rapidly than the law, should the international arbitrator apply the law as it is at the time when the award is rendered, although it is evidently not adapted to the issue in dispute? Is it not more sensible to accept that the international arbitrator may reason as would the judge of the legal system to be applied, following its legal principles of interpretation and creation of the law, although the arbitrator has no role to play in the creative process of that specific national legal system? No doubt, the international arbitrator is in a better position to do so than a judge applying a foreign law. The international arbitrator is often chosen in function of his or her knowledge of the language of the law to be applied as well as the familiarity of principles of comparative law that few judges have and that will help in understanding the rules of interpretation of the law to be applied.

The relationship between the language abilities of the arbitrator and the application of the law should not be underestimated. In an interesting article of 1995,2 an author was wondering whether it is really possible to dissociate the law from the language in which it is expressed. Can English legal concepts such as “consideration,” “implied terms,” “misrepresentation,” or “frustration” be properly explained in French or in Spanish? The point is particularly well taken. Likewise, can an arbitrator extend to unprecedented situations concepts of French administrative law such as “la concession” or “les sujétions imprévues” if he or she is unable to have access to French legal authors or to the decisions of the French Conseil d’Etat in their original language or at least in the language of countries such as Latin American or Middle East countries were those concepts have been introduced a long time ago? Construction lawyers perfectly know how difficult it is to apply the FIDIC conditions in another language than English since they are based on English legal concepts. Many other examples could be provided.

Many important practical issues of this type are discussed in this book. They are dealt with very concretely by international arbitrators from different legal traditions with references to actual cases and personal experiences. It will find its natural place in the ICC Institute World Business Law Dossiers Series that anybody interested in international arbitration should have in their library.

1
See the award rendered on August 28, 1951 by Lord Asquith of Bishopstone: ICLQ, 1952.247.

2
D. von Bretenstein “La langue de l’arbitrage. Une langue arbitraire.” Bulletin ASA, 1995, p. 18.