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1. What Are Applicable Laws in International Arbitration?

In international arbitration, "applicable laws" refer to the legal frameworks that govern
different aspects of the arbitration process. Unlike domestic litigation, where a single
jurisdiction’s laws typically apply, international arbitration involves multiple legal systems
due to the cross-border nature of the disputes. These laws are categorized into several types,
each governing a specific aspect of the arbitration:
1. Law Governing the Arbitration Agreement
o Determines the validity, enforceability, and interpretation of the arbitration
agreement (the clause or contract stipulating arbitration).
2. Law Governing the Arbitration Procedure (Lex Arbitri)
o Regulates the procedural aspects of the arbitration, such as the conduct of
proceedings, appointment of arbitrators, and court intervention.
3. Substantive Law (Applicable Law to the Merits)
o Governs the substance of the dispute, such as the rights and obligations of the
parties under the contract or treaty.
4. Law Governing the Recognition and Enforcement of the Arbitral Award
o Determines whether the final arbitral award can be recognized and enforced in
a particular jurisdiction.
5. Other Relevant Laws
o May include laws related to capacity of parties, public policy, or mandatory
rules of a jurisdiction.
Each of these laws can originate from different jurisdictions or international frameworks,
making the interplay complex. Let’s dive into each category with concepts, examples, and
potential areas of confusion.

2. Detailed Explanation of Each Category

2.1. Law Governing the Arbitration Agreement
Concept:
The arbitration agreement is the foundation of arbitration, as it reflects the parties’ consent to
resolve disputes through arbitration. The law governing the arbitration agreement determines
whether the agreement is valid, enforceable, and how it should be interpreted. This law is
critical because, without a valid agreement, the arbitration cannot proceed.
How It’s Chosen:
 Party Autonomy: Parties can expressly choose the law governing the arbitration
agreement in their contract (e.g., “This arbitration agreement shall be governed by
English law”).

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 Implied Choice: If not specified, the law governing the main contract often applies,
but some jurisdictions (e.g., English courts) may apply the law of the seat of
arbitration (lex arbitri) if the arbitration agreement is silent.
 Default Rule: In the absence of choice, courts or tribunals may apply the law with the
closest connection to the agreement, often the seat’s law, or international principles
(e.g., UNIDROIT Principles).
Example:
A contract between a Chinese company and a German company includes an arbitration clause
stating that disputes will be resolved under ICC rules in Singapore, but the contract is
governed by Chinese law. The arbitration agreement doesn’t specify its governing law.
 Question: What law governs the arbitration agreement?
 Answer: It depends on the approach. Under English law (following Enka v Chubb
[2020]), the law of the seat (Singapore law) may apply if no express choice is made.
However, some tribunals might apply Chinese law (the law of the main contract) or
analyze the closest connection. This creates potential for confusion (see below).
Confusing Question:
What happens if the arbitration agreement is valid under the law of the seat but invalid under
the law of the main contract?
 Answer: This is a common issue. Most tribunals prioritize the separability doctrine,
which treats the arbitration agreement as distinct from the main contract. If the seat’s
law (e.g., Singapore law) deems the arbitration agreement valid, the tribunal will
proceed, even if the main contract’s law (e.g., Chinese law) invalidates it. However,
enforcement courts in other jurisdictions might refuse enforcement if their public
policy deems the agreement invalid.
Key Principle:
 Separability Doctrine: The arbitration agreement is treated as a separate contract, so
the invalidity of the main contract doesn’t automatically invalidate the arbitration
agreement (Article 16, UNCITRAL Model Law).

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Lex arbitri
1. What is Lex Arbitri?
The lex arbitri is the procedural law of the arbitration, derived from the national law of the
seat of arbitration. It governs how the arbitration is conducted, the role of courts in supporting
or supervising the process, and the grounds for challenging or setting aside an arbitral award.
The seat of arbitration is a legal concept, not necessarily the physical location of hearings,
and it ties the arbitration to a specific jurisdiction’s legal system.
Key Features:
 Mandatory vs. Default Rules: The lex arbitri includes mandatory provisions (e.g.,
grounds for setting aside an award) that parties cannot override and default provisions
(e.g., procedural timelines) that apply unless parties agree otherwise.
 Interaction with Institutional Rules: Parties may adopt institutional rules (e.g., ICC,
LCIA, or UNCITRAL Arbitration Rules) to govern procedure, but these rules operate
within the framework of the lex arbitri. Mandatory provisions of the lex arbitri always
prevail.
 Court Supervision: The lex arbitri determines the extent to which local courts at the
seat can intervene, such as appointing arbitrators, granting interim measures, or
hearing challenges to awards.
Example: A contract between a Canadian company and an Indian company specifies
arbitration in London under ICC Rules. The lex arbitri is English law (specifically, the
English Arbitration Act 1996) because London is the seat. English law governs procedural
matters like arbitrator appointments, court assistance for evidence, and grounds for setting
aside the award, even though the ICC Rules provide additional procedural guidelines.

2. Scope of Lex Arbitri

The lex arbitri governs several critical aspects of the arbitration process, including:
1. Arbitrability: Whether the subject matter of the dispute can be resolved through
arbitration (e.g., some jurisdictions prohibit arbitration of family law or criminal
matters).
2. Arbitration Agreement: The formal and substantive validity of the arbitration
agreement, often in conjunction with the law governing the agreement itself.
3. Arbitrator Appointment and Conduct: Rules for appointing, challenging, or
removing arbitrators, including their independence and impartiality.
4. Procedural Conduct: The framework for conducting the arbitration, such as evidence
rules, hearing procedures, and timelines (though parties can customize these via
institutional rules).
5. Court Intervention: The extent to which courts at the seat can assist (e.g., interim
measures, compelling witnesses) or intervene (e.g., staying arbitration proceedings).

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6. Interim Measures: The tribunal’s and courts’ powers to grant interim relief, such as
injunctions or asset freezes.
7. Award: The form, content, and issuance of the arbitral award, including requirements
for it to be reasoned or signed.
8. Challenge and Annulment: The grounds and procedure for setting aside an award at
the seat.
9. Public Policy: The seat’s public policy, which may limit arbitration or affect award
validity.
Example: In an arbitration seated in Singapore, the lex arbitri is Singapore’s International
Arbitration Act, based on the UNCITRAL Model Law. If a party seeks to challenge an
arbitrator for bias, Singapore law (Article 12 of the Model Law) governs the challenge
procedure. If the tribunal needs court assistance to compel a witness, Singapore courts apply
the lex arbitri to provide support.

3. Key Principles of Lex Arbitri

The lex arbitri is shaped by several fundamental principles that ensure arbitration is fair,
efficient, and enforceable. These principles are reflected in modern arbitration laws, such as
those based on the UNCITRAL Model Law, and are critical to understanding its application.
1. Party Autonomy:
o Parties have significant freedom to shape the arbitration procedure, such as
choosing institutional rules, the number of arbitrators, or hearing formats,
provided they comply with mandatory provisions of the lex arbitri.
o Example: Parties in a Zurich-seated arbitration (Swiss lex arbitri) can agree to
use UNCITRAL Arbitration Rules instead of Swiss default procedures, but
they cannot waive mandatory requirements like due process.
o Relevant Provision: Article 19(1) of the UNCITRAL Model Law: “Subject to
the provisions of this Law, the parties are free to agree on the procedure to be
followed by the arbitral tribunal.”
2. Limited Court Intervention:
o Courts at the seat intervene only in specific circumstances defined by the lex
arbitri, such as to appoint arbitrators, grant interim measures, or hear
challenges to awards. This ensures arbitration remains autonomous.
o Example: Under English law (Arbitration Act 1996, Section 1(c)), courts
avoid interfering unless explicitly authorized, such as to stay court
proceedings in favor of arbitration (Section 9).
o Relevant Provision: Article 5 of the UNCITRAL Model Law: “In matters
governed by this Law, no court shall intervene except where so provided in
this Law.”

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3. Due Process:
o The lex arbitri mandates that parties be treated equally and given a fair
opportunity to present their case, ensuring the award’s enforceability.
o Example: In a Paris-seated arbitration (French lex arbitri), if a tribunal denies
a party the chance to submit key evidence, the award may be set aside for
violating due process.
o Relevant Provision: Article 18 of the UNCITRAL Model Law: “The parties
shall be treated with equality and each party shall be given a full opportunity
of presenting his case.”
4. Separability of the Arbitration Agreement:
o The arbitration agreement is treated as a distinct contract, so its validity is
assessed independently of the main contract. This allows arbitration to proceed
even if the main contract is invalid.
o Example: In a Stockholm-seated arbitration (Swedish lex arbitri), if the main
contract is void for fraud, the arbitration agreement remains valid under
Swedish law, enabling the tribunal to rule on the dispute.
o Relevant Provision: Article 16(1) of the UNCITRAL Model Law: “An
arbitration clause which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract.”
5. Kompetenz-Kompetenz:
o The arbitral tribunal has the authority to rule on its own jurisdiction, including
the validity of the arbitration agreement or the arbitrability of the dispute.
o Example: In a Singapore-seated arbitration, if a party argues the arbitration
agreement is forged, the tribunal can decide this issue under Singapore’s lex
arbitri before proceeding.
o Relevant Provision: Article 16(1) of the UNCITRAL Model Law: “The
arbitral tribunal may rule on its own jurisdiction, including any objections with
respect to the existence or validity of the arbitration agreement.”
6. Finality and Enforceability:
o The lex arbitri ensures awards are final and binding, with limited grounds for
challenge, facilitating enforcement under frameworks like the New York
Convention.
o Example: In a New York-seated arbitration, the U.S. Federal Arbitration Act
(FAA) limits challenges to awards to grounds like fraud or arbitrator
misconduct, aligning with the New York Convention.
o Relevant Provision: Article 34 of the UNCITRAL Model Law lists narrow
grounds for setting aside awards, such as lack of jurisdiction or public policy
violations.

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7. Supportive Role of Courts:

o The lex arbitri enables courts to support arbitration, such as by appointing
arbitrators, enforcing interim measures, or compelling evidence, without
undermining arbitral autonomy.
o Example: In a Hong Kong-seated arbitration, courts can grant interim
injunctions under the Arbitration Ordinance to preserve assets, supporting the
tribunal’s process.
o Relevant Provision: Article 17J of the UNCITRAL Model Law allows courts
to enforce tribunal-ordered interim measures.
8. Public Policy and Mandatory Rules:
o The lex arbitri imposes mandatory rules, including public policy, that cannot
be overridden by party agreement. These ensure arbitration aligns with the
seat’s legal system.
o Example: In a Dubai-seated arbitration, the lex arbitri (UAE Arbitration Law)
prohibits arbitration of disputes involving public policy matters like criminal
law.
o Relevant Provision: Article 34(2)(b)(ii) of the UNCITRAL Model Law
allows awards to be set aside if they conflict with the seat’s public policy.

4. How is Lex Arbitri Determined?

The lex arbitri is determined by the seat of arbitration, which the parties typically specify in
the arbitration agreement (e.g., “Arbitration shall take place in Geneva”). Key points:
 Party Choice: Parties choose the seat, and its national law becomes the lex arbitri.
Popular seats include London (English law), Paris (French law), Singapore (Singapore
law), and Geneva (Swiss law).
 Default Selection: If no seat is chosen, the arbitral tribunal or institution (e.g., ICC,
LCIA) selects one based on factors like neutrality, convenience, or the dispute’s
connection to a jurisdiction. The chosen seat’s law applies.
 Fixed to the Seat: The lex arbitri cannot be detached from the seat. For example,
parties cannot choose London as the seat but apply French procedural law, as this
would create legal uncertainty.
Example: A contract between a Brazilian and a Chinese company specifies arbitration in
Stockholm but is silent on procedural law. The lex arbitri is Swedish law (Swedish
Arbitration Act 1999), as Stockholm is the seat. If the parties adopt LCIA Rules, those rules
govern procedure but are subject to Swedish law’s mandatory provisions, such as due
process.
Potential Confusion:

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 Seat vs. Venue: The seat is a legal concept, while the venue is the physical location of
hearings. Hearings can occur elsewhere (e.g., Dubai for a London-seated arbitration),
but the lex arbitri remains the seat’s law.
 Question: What if parties choose a seat but conduct hearings in another country?
o Answer: The lex arbitri remains the law of the seat. For example, a Paris-
seated arbitration with hearings in Singapore is still governed by French law,
and French courts have supervisory jurisdiction.

5. Role of Lex Arbitri in Practice

To illustrate how the lex arbitri operates, consider this scenario:
Scenario: A contract between a German company and a Russian company specifies
arbitration in Vienna under UNCITRAL Arbitration Rules, with Austrian law as the lex arbitri
(based on the UNCITRAL Model Law). The dispute concerns a breach of contract, and issues
arise during the arbitration.
1. Arbitrator Challenge:
o The Russian company challenges an arbitrator for alleged bias. Austrian law
(Article 12, UNCITRAL Model Law) governs the challenge procedure,
requiring disclosure of conflicts and a fair process.
2. Interim Measures:
o The German company seeks an interim injunction to freeze the Russian
company’s assets. The tribunal grants the measure under Article 17 of the
Model Law, and Austrian courts enforce it under Article 17J.
3. Procedural Flexibility:
o The parties agree to expedite the procedure using UNCITRAL Rules, which
Austrian law allows under Article 19 (party autonomy).
4. Award Challenge:
o The Russian company challenges the final award, claiming a violation of due
process. Austrian courts review the challenge under Article 34, which allows
annulment only for serious procedural flaws (e.g., no opportunity to present
the case).
Outcome: The lex arbitri (Austrian law) provides a predictable framework, ensuring fairness,
supporting the tribunal, and limiting court interference, while aligning with international
standards via the UNCITRAL Model Law.

6. Relevant Articles from UNCITRAL Model Law and New York Convention
The UNCITRAL Model Law on International Commercial Arbitration (1985, amended
2006) is a model framework adopted or adapted by over 80 countries (e.g., Singapore, Hong

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Kong, Australia). It heavily influences the lex arbitri in these jurisdictions. The New York
Convention (1958) primarily governs award recognition and enforcement but intersects with
the lex arbitri when awards are challenged or enforced at the seat. Below are the key articles
relevant to the lex arbitri.
UNCITRAL Model Law Articles
1. Article 1(2) – Scope of Application:
o Specifies that the Model Law applies to international commercial arbitration,
with most provisions tied to the seat (e.g., “the place of arbitration is situated
in this State”).
o Relevance: Defines the lex arbitri’s territorial scope.
2. Article 5 – Extent of Court Intervention:
o “In matters governed by this Law, no court shall intervene except where so
provided in this Law.”
o Relevance: Ensures minimal court interference, a core principle of the lex
arbitri.
3. Article 6 – Court Supervision:
o Designates courts at the seat to perform functions like appointing arbitrators or
hearing challenges.
o Relevance: Clarifies the supportive and supervisory role of courts under the
lex arbitri.
4. Article 8 – Arbitration Agreement and Court Proceedings:
o Requires courts to refer parties to arbitration if a valid arbitration agreement
exists, unless it’s null, void, or inoperative.
o Relevance: Supports arbitration by staying court proceedings, governed by the
lex arbitri.
5. Article 12 – Grounds for Challenge of Arbitrators:
o Allows challenges to arbitrators for lack of impartiality or independence.
o Relevance: Governs arbitrator conduct, a key procedural aspect of the lex
arbitri.
6. Article 16 – Competence of Arbitral Tribunal to Rule on Its Jurisdiction:
o Codifies the separability doctrine and kompetenz-kompetenz principle.
o Relevance: Empowers tribunals to decide jurisdictional issues under the lex
arbitri.
7. Article 17 to 17J – Interim Measures:

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o Governs the tribunal’s power to grant interim measures (Article 17) and court
enforcement of those measures (Article 17J).
o Relevance: Enables the lex arbitri to support arbitration through interim relief.
8. Article 18 – Equal Treatment of Parties:
o Mandates equal treatment and a full opportunity to present one’s case.
o Relevance: Ensures due process, a mandatory requirement of the lex arbitri.
9. Article 19 – Determination of Rules of Procedure:
o Allows parties to agree on procedure, subject to the Model Law’s mandatory
provisions.
o Relevance: Reflects party autonomy within the lex arbitri’s framework.
10. Article 20 – Place of Arbitration:
o Confirms that the seat determines the lex arbitri, though hearings may occur
elsewhere.
o Relevance: Ties the lex arbitri to the seat.
11. Article 31 – Form and Contents of Award:
o Requires awards to be in writing, signed, reasoned (unless agreed otherwise),
and state the seat.
o Relevance: Governs the award’s formal requirements under the lex arbitri.
12. Article 34 – Application for Setting Aside:
o Lists grounds for setting aside an award, such as invalid agreement, lack of
due process, or public policy violations.
o Relevance: Defines the lex arbitri’s role in supervising awards.
New York Convention Articles
While the New York Convention primarily governs recognition and enforcement, it intersects
with the lex arbitri when awards are challenged at the seat or enforced elsewhere. Key
articles:
1. Article V(1)(a) – Invalid Arbitration Agreement:
o Allows refusal of enforcement if the arbitration agreement is invalid under the
law of the seat (lex arbitri) or the law chosen by the parties.
o Relevance: Links the lex arbitri to enforcement, as the seat’s law assesses
agreement validity.
2. Article V(1)(d) – Irregular Procedure:
o Allows refusal if the arbitral procedure violated the parties’ agreement or,
failing such agreement, the lex arbitri.

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o Relevance: Ensures the lex arbitri’s procedural rules are respected for
enforceability.
3. Article V(1)(e) – Award Not Binding or Set Aside:
o Allows refusal if the award has been set aside at the seat under the lex arbitri.
o Relevance: Connects the lex arbitri’s annulment grounds to global
enforcement.
4. Article V(2)(b) – Public Policy:
o Allows refusal if enforcement violates the public policy of the enforcing state,
which may align with the seat’s public policy under the lex arbitri.
o Relevance: Reflects the lex arbitri’s public policy constraints.

7. Common Confusing Questions and Answers

To deepen your understanding, here are answers to potentially confusing questions about the
lex arbitri:
Q1: Can parties choose a lex arbitri different from the seat’s law?
 A: No, the lex arbitri is inherently tied to the seat’s national law. Choosing a different
law would undermine the seat’s supervisory jurisdiction. However, parties can adopt
institutional rules (e.g., ICC Rules) to customize procedure within the lex arbitri’s
mandatory framework.
Q2: What happens if the lex arbitri conflicts with institutional rules?
 A: Mandatory provisions of the lex arbitri prevail. For example, if ICC Rules allow a
procedure prohibited by the seat’s law (e.g., a mandatory requirement for a reasoned
award), the lex arbitri takes precedence.
Q3: How does the lex arbitri affect enforcement in another country?
 A: The lex arbitri governs the arbitration’s conduct and award validity at the seat. If
an award is set aside under the lex arbitri (e.g., Article 34, UNCITRAL Model Law),
it may not be enforceable abroad under Article V(1)(e) of the New York Convention.
However, some jurisdictions (e.g., France) may enforce awards set aside at the seat,
creating complexity.
Q4: What if no seat is specified in the arbitration agreement?
 A: The tribunal or institution selects the seat, and its law becomes the lex arbitri. For
example, ICC Rules (Article 18) allow the ICC Court to fix the seat if parties don’t
agree. The chosen seat’s law applies, ensuring legal certainty.
Q5: Can the lex arbitri render a dispute non-arbitrable?

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 A: Yes, the lex arbitri determines arbitrability. For example, if the seat is in a country
where tax disputes are non-arbitrable (e.g., certain jurisdictions), the tribunal cannot
proceed, even if the substantive law allows arbitration.

8. Practical Tips for Applying Lex Arbitri

1. Choose the Seat Wisely: Select a seat with a modern, arbitration-friendly lex arbitri
(e.g., Singapore, Switzerland, or England) to ensure efficiency and enforceability.
2. Understand Mandatory Rules: Review the seat’s arbitration law (e.g., UNCITRAL
Model Law-based statutes) to identify non-negotiable provisions like due process or
award challenges.
3. Align Institutional Rules: Ensure chosen institutional rules (e.g., ICC, LCIA)
complement the lex arbitri to avoid conflicts.
4. Anticipate Court Involvement: Know the lex arbitri’s provisions for court support
(e.g., interim measures) or intervention (e.g., annulment grounds) to strategize
effectively.
5. Study Key Texts: Read the UNCITRAL Model Law and national arbitration statutes
(e.g., Singapore International Arbitration Act) to understand variations in lex arbitri.

9. Conclusion
The lex arbitri is the procedural backbone of international arbitration, providing the legal
framework for conducting the process, supervising tribunals, and ensuring awards are valid
and enforceable. Its principles—party autonomy, limited court intervention, due process,
separability, kompetenz-kompetenz, and finality—create a balanced system that respects
party choice while maintaining fairness and legal oversight. The UNCITRAL Model Law and
New York Convention provide standardized frameworks that shape the lex arbitri in many
jurisdictions, ensuring global consistency.

Case Study: Application of Lex Arbitri in Singapore

Background
Parties:
 Alpha Corp, a technology company incorporated in Japan, specializing in AI
software development.
 Beta Ltd, a telecommunications provider incorporated in Brazil, seeking to integrate
AI solutions into its network.
Contract:
In 2023, Alpha Corp and Beta Ltd entered a contract for Alpha to develop and license AI
software for Beta’s 5G network. The contract includes an arbitration clause:

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 Arbitration Clause: “Any dispute arising out of or in connection with this contract
shall be resolved by arbitration in Singapore under the Rules of the Singapore
International Arbitration Centre (SIAC). The arbitration shall be conducted by three
arbitrators.”
 Governing Law: The contract is governed by English law (substantive law). The
arbitration agreement is silent on its governing law.
 Seat: Singapore is explicitly designated as the seat of arbitration.
Dispute:
In 2024, Beta Ltd alleges that Alpha Corp’s software failed to meet performance benchmarks,
causing financial losses. Alpha Corp counters that Beta Ltd misused the software, breaching
the license terms. Beta Ltd initiates arbitration under SIAC Rules, claiming USD 10 million
in damages. Alpha Corp files a counterclaim for USD 5 million for unpaid license fees.
Lex Arbitri:
As the seat of arbitration is Singapore, the lex arbitri is Singapore’s International
Arbitration Act 1994 (IAA), which incorporates the UNCITRAL Model Law (2006
version) with minor modifications. The IAA governs the procedural framework of the
arbitration, including arbitrator appointments, interim measures, procedural conduct, and
award challenges.

Case Study Narrative: Application of Lex Arbitri

1. Formation of the Arbitral Tribunal
Issue:
Beta Ltd nominates an arbitrator, and Alpha Corp nominates another, per SIAC Rules (Article
9). However, the parties cannot agree on the presiding arbitrator.
Application of Lex Arbitri:
 The SIAC Rules defer to the SIAC President to appoint the presiding arbitrator if
parties fail to agree (Article 9.3). This aligns with Singapore’s lex arbitri, specifically
Article 11(3) of the UNCITRAL Model Law (incorporated in the IAA), which
allows a designated authority (here, SIAC) to appoint arbitrators when parties cannot
agree.
 The SIAC President appoints a Singapore-based arbitrator with expertise in
technology disputes, ensuring impartiality and independence as required by Article
12(2) of the Model Law (grounds for challenging arbitrators for lack of impartiality).
Outcome:
The tribunal is formed efficiently, demonstrating the lex arbitri’s supportive role in
facilitating arbitrator appointments. Singapore’s arbitration-friendly framework ensures
minimal delays.

2. Challenge to Arbitrator Independence

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Issue:
Alpha Corp discovers that Beta Ltd’s nominated arbitrator previously advised a subsidiary of
Beta Ltd on an unrelated matter five years ago. Alpha Corp challenges the arbitrator, alleging
a conflict of interest.
Application of Lex Arbitri:
 The lex arbitri governs challenges to arbitrators. Article 12(1) and (2) of the
UNCITRAL Model Law require arbitrators to disclose circumstances likely to give
rise to justifiable doubts about their impartiality or independence. Article 13 outlines
the challenge procedure.
 Under Singapore’s IAA, the challenge is first submitted to the tribunal (Article 13(2)).
The tribunal invites disclosures and hears arguments. The challenged arbitrator
submits a disclosure confirming the prior engagement was minor and concluded years
ago.
 Alpha Corp escalates the challenge to the SIAC Court of Arbitration, as permitted by
SIAC Rules and the lex arbitri (Article 13(3)). Singapore law aligns with the IBA
Guidelines on Conflicts of Interest (soft law), which the SIAC Court considers. The
prior engagement is deemed too remote to justify doubts about impartiality.
Outcome:
The challenge is dismissed, upholding the arbitrator’s appointment. The lex arbitri ensures a
fair and transparent process, balancing due process (Article 18) with efficiency.
Principle Applied:
 Due Process: The lex arbitri mandates equal treatment and a fair opportunity to
challenge arbitrators, ensuring tribunal integrity.

3. Interim Measures
Issue:
Beta Ltd fears that Alpha Corp may transfer key intellectual property (IP) assets to a third
party during the arbitration, undermining a potential award. Beta Ltd requests an interim
injunction from the tribunal to prevent the transfer.
Application of Lex Arbitri:
 The lex arbitri governs the tribunal’s power to grant interim measures. Article 17(1)
of the UNCITRAL Model Law allows tribunals to order measures to maintain the
status quo or prevent harm. Singapore’s IAA fully adopts this provision.
 The tribunal, applying SIAC Rules (Article 30) and Article 17, grants an interim
injunction prohibiting Alpha Corp from transferring the IP assets, finding that Beta
Ltd demonstrated a risk of irreparable harm.
 Beta Ltd seeks court enforcement of the tribunal’s order in Singapore, as Alpha Corp
hesitates to comply. Article 17J of the Model Law, incorporated in the IAA, allows

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Singapore courts to enforce tribunal-ordered interim measures. The Singapore High

Court enforces the injunction, citing the lex arbitri’s supportive role.
Outcome:
The interim measure preserves the dispute’s integrity, showcasing the lex arbitri’s ability to
empower both tribunals and courts to protect parties’ rights.
Principle Applied:
 Supportive Role of Courts: The lex arbitri enables courts to assist arbitration without
undermining tribunal autonomy.

4. Procedural Conduct
Issue:
The parties disagree on the arbitration procedure, particularly on document disclosure. Alpha
Corp seeks extensive discovery (common in common law systems like England), while Beta
Ltd prefers limited disclosure (aligned with civil law traditions).
Application of Lex Arbitri:
 The lex arbitri grants parties autonomy to agree on procedure, subject to mandatory
rules. Article 19(1) of the UNCITRAL Model Law states: “Subject to the provisions
of this Law, the parties are free to agree on the procedure.”
 The SIAC Rules (Article 19) allow the tribunal to conduct the arbitration in a manner
it deems appropriate, provided it ensures equal treatment (Article 18). The tribunal,
guided by Singapore’s lex arbitri, adopts a balanced approach, ordering targeted
document disclosure based on the IBA Rules on the Taking of Evidence in
International Arbitration (soft law).
 The tribunal also sets a timeline for written submissions, hearings, and evidence,
complying with the lex arbitri’s requirement for efficiency and fairness.
Outcome:
The arbitration proceeds smoothly, with the lex arbitri providing a flexible framework that
accommodates party preferences while ensuring fairness.
Principle Applied:
 Party Autonomy: The lex arbitri respects parties’ procedural choices within
mandatory limits, such as due process.

5. Issuance of the Award

Issue:
After hearings in Singapore, the tribunal issues an award in 2025, finding Alpha Corp liable
for USD 6 million in damages to Beta Ltd for defective software. Alpha Corp’s counterclaim
is partially upheld, awarding USD 2 million for unpaid fees. The final award is USD 4
million in favor of Beta Ltd.

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Application of Lex Arbitri:

 The lex arbitri governs the award’s form and content. Article 31 of the UNCITRAL
Model Law requires the award to be in writing, signed by the arbitrators, reasoned
(unless agreed otherwise), and state the seat (Singapore). The tribunal complies,
issuing a reasoned award signed by all three arbitrators.
 The award is final and binding, per Article 32, subject to challenge under the lex
arbitri.
Outcome:
The award meets the lex arbitri’s formal requirements, ensuring its validity and potential
enforceability under the New York Convention.
Principle Applied:
 Finality and Enforceability: The lex arbitri ensures awards are robust and
enforceable, aligning with international standards.

6. Challenge to the Award

Issue:
Alpha Corp challenges the award in Singapore, arguing:
1. The tribunal exceeded its jurisdiction by ruling on software specifications not covered
by the contract.
2. The tribunal violated due process by limiting Alpha Corp’s document disclosure,
denying a fair hearing.
Application of Lex Arbitri:
 The lex arbitri governs challenges to awards. Article 34 of the UNCITRAL Model
Law, incorporated in the IAA, lists exclusive grounds for setting aside an award,
including:
o Lack of jurisdiction (Article 34(2)(a)(iii)).
o Violation of due process (Article 34(2)(a)(ii)).
 The Singapore High Court reviews the challenge:
o Jurisdiction: The court finds that the tribunal’s interpretation of the contract’s
scope (governed by English law) was within its authority, as the arbitration
agreement covers “any dispute” arising from the contract. The court defers to
the tribunal’s competence under Article 16(1) (kompetenz-kompetenz).
o Due Process: The court examines whether Alpha Corp was denied a fair
opportunity to present its case (Article 18). It concludes that the tribunal’s
disclosure limits were reasonable, aligned with SIAC Rules and IBA
Guidelines, and did not prejudice Alpha Corp.

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 Singapore’s pro-arbitration stance, reflected in the IAA, limits court interference

(Article 5), and the challenge is dismissed.
Outcome:
The award is upheld, reinforcing the lex arbitri’s commitment to finality and minimal court
intervention.
Principle Applied:
 Limited Court Intervention: The lex arbitri restricts challenges to narrow grounds,
promoting arbitration’s efficiency.

7. Enforcement Abroad
Issue:
Beta Ltd seeks to enforce the USD 4 million award against Alpha Corp’s assets in Japan, as
Alpha Corp refuses to pay voluntarily.
Application of Lex Arbitri and New York Convention:
 The lex arbitri ensures the award’s validity at the seat, facilitating enforcement under
the New York Convention (ratified by Japan). Beta Ltd applies to a Japanese court
for enforcement.
 The Japanese court reviews the award under Article V of the New York Convention:
o Article V(1)(a): The arbitration agreement is valid under Singapore law (lex
arbitri), as confirmed during the arbitration.
o Article V(1)(d): The procedure complied with SIAC Rules and the lex arbitri.
o Article V(1)(e): The award was not set aside in Singapore, strengthening its
enforceability.
o Article V(2)(b): Alpha Corp argues the award violates Japanese public policy,
but the court finds no such violation, as the dispute is commercial and the
award is reasoned.
 The Japanese court enforces the award, ordering Alpha Corp to pay.
Outcome:
The lex arbitri’s robust framework ensures the award’s enforceability abroad, aligning with
the New York Convention’s pro-enforcement bias.
Principle Applied:
 Finality and Enforceability: The lex arbitri supports global enforcement by ensuring
procedural integrity.

Key Takeaways from the Case Study

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1. Singapore’s Lex Arbitri: The IAA, based on the UNCITRAL Model Law, provides a
predictable, arbitration-friendly framework that balances party autonomy with
mandatory protections like due process.
2. Principles in Action: The case demonstrates party autonomy (procedural choices),
limited court intervention (challenge dismissal), due process (arbitrator challenge),
and finality (award enforcement).
3. Court Support: Singapore courts actively support arbitration (e.g., enforcing interim
measures) while respecting tribunal autonomy.
4. Global Enforceability: The lex arbitri’s alignment with the UNCITRAL Model Law
and New York Convention ensures awards are enforceable worldwide.

Law applicable to the substance

1. Concept of Substantive Law
The substantive law governs the merits of the dispute, answering questions like:
 What are the parties’ contractual obligations?
 Was there a breach of contract or treaty?
 What remedies (e.g., damages, specific performance) are available?
Unlike the lex arbitri, which regulates the arbitration process (e.g., arbitrator appointments,
interim measures), or the law of the arbitration agreement, which determines its validity, the
substantive law focuses on the dispute’s content. In commercial arbitration, it’s typically a
national law (e.g., English law, Indian law) or non-state law (e.g., UNIDROIT Principles). In
investment arbitration, it may include the host state’s law, an investment treaty, and
international law.
Key Distinction:
 Substantive Law: Governs the merits (e.g., contract interpretation under New York
law).
 Lex Arbitri: Governs procedure (e.g., Singapore’s International Arbitration Act for a
Singapore-seated arbitration).
 Law of Arbitration Agreement: Governs the agreement’s validity (e.g., Swiss law if
chosen or implied).

2. How Substantive Law is Chosen

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The choice of substantive law is critical, as it shapes the tribunal’s analysis of the dispute.
The process for selecting the substantive law is flexible but guided by principles of party
autonomy and fairness.
2.1. Express Choice
Parties can explicitly choose the substantive law in their contract, typically through a
governing law clause (e.g., “This contract shall be governed by German law”). This choice is
binding on the tribunal, subject to mandatory rules or public policy (discussed below).
Example: A contract between a Canadian company and a Chinese company for the supply of
machinery states: “This agreement is governed by English law.” The tribunal applies English
contract law to interpret terms, assess breaches, and determine remedies, regardless of the
arbitration seat (e.g., Hong Kong).
2.2. Implied Choice
If the contract is silent on the governing law, the tribunal may infer the parties’ intent based
on contract terms, conduct, or circumstances. Indicators include:
 References to a specific legal system in the contract (e.g., citing English statutes).
 The parties’ domicile or place of performance.
 Prior dealings under a specific law.
Example: A contract between a French company and a Mexican company for wine
distribution is silent on governing law but specifies delivery in Bordeaux and references
French trade regulations. The tribunal infers an implied choice of French law based on these
factors.
2.3. Tribunal’s Discretion
In the absence of an express or implied choice, the tribunal selects the substantive law using
criteria like:
 Closest Connection Test: The law of the jurisdiction with the strongest connection to
the dispute, such as where the contract is performed, signed, or where the parties are
based.
 International Rules: For EU-related contracts, the tribunal may apply the Rome I
Regulation (Regulation (EC) No 593/2008), which prioritizes the law of the country
where the contract’s characteristic performance occurs (e.g., the seller’s law in a sale
of goods).
 Reasonableness: The tribunal may choose a law that ensures predictability and
fairness.
Example (from your prior input): A U.S. company and an Indian company contract for the
sale of goods, with arbitration in Singapore but no governing law specified. The tribunal
applies Indian law because the goods are delivered in India, the contract was signed there,
and the Indian company is the buyer (closest connection).
2.4. Investment Arbitration

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In investment arbitration, the substantive law is often a combination of:

 Host State Law: The law of the state where the investment is made (e.g., Brazilian
law for an investment in Brazil).
 Investment Treaty: Bilateral or multilateral treaties (e.g., BITs, NAFTA) setting
standards like fair and equitable treatment.
 International Law: Customary international law or principles (e.g., expropriation
rules).
Example: A British investor arbitrates against Argentina under a UK-Argentina BIT, seated
in Paris. The tribunal applies the BIT’s standards (e.g., non-discrimination), Argentine law for
local regulations, and international law for expropriation claims.
2.5. Non-State Law
Parties may choose non-state law, such as Sharia law, lex mercatoria, or UNIDROIT
Principles of International Commercial Contracts, if permitted by the lex arbitri. Some
jurisdictions’ lex arbitri (e.g., Switzerland, Singapore) allow this, while others (e.g., certain
civil law systems) may require a national law.
Example: A contract between a Saudi company and a Dutch company specifies arbitration in
Geneva and chooses Sharia law as the substantive law. The tribunal applies Sharia principles
to interpret payment obligations, as Swiss law (lex arbitri) permits non-state law.

3. Role of UNCITRAL Model Law and New York Convention

The UNCITRAL Model Law and New York Convention primarily address procedural and
enforcement issues, but they indirectly influence the application of substantive law by setting
boundaries (e.g., public policy) and respecting party autonomy. Below, I’ll link relevant
provisions and explain their impact.
3.1. UNCITRAL Model Law
The UNCITRAL Model Law on International Commercial Arbitration (1985, amended
2006) is a procedural framework adopted by over 80 countries (e.g., Singapore, Hong Kong).
While it focuses on the lex arbitri, it supports the application of substantive law through
provisions on party autonomy and public policy.
 Article 28 – Rules Applicable to Substance of Dispute:
o Article 28(1): “The arbitral tribunal shall decide the dispute in accordance
with such rules of law as are chosen by the parties as applicable to the
substance of the dispute.”
 Relevance: Codifies party autonomy, requiring tribunals to respect the
parties’ express or implied choice of substantive law (e.g., New York
law, Sharia law). The phrase “rules of law” allows non-state law,
unlike “law” (which typically means national law).

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o Article 28(2): “Failing any designation by the parties, the arbitral tribunal
shall apply the law determined by the conflict of laws rules which it considers
applicable.”
 Relevance: Grants tribunals discretion to select the substantive law
using conflict of laws principles (e.g., closest connection test) when no
choice is made.
o Example: In a Singapore-seated arbitration, the tribunal applies Article 28(1)
to use English law (chosen by the parties) or Article 28(2) to select Indian law
(closest connection) if no choice is specified.
 Article 34(2)(b)(ii) – Setting Aside for Public Policy:
o Allows an award to be set aside if it violates the public policy of the seat.
o Relevance: The chosen substantive law must not conflict with the seat’s
public policy. For example, if the substantive law permits a practice illegal at
the seat (e.g., usury prohibited by the seat’s law), the award may be set aside.
o Example: A tribunal applies a chosen law allowing high-interest loans, but the
Singapore court (seat) sets aside the award because Singapore’s public policy
caps interest rates.
 Article 18 – Equal Treatment and Due Process:
o Requires parties to be treated equally and given a fair opportunity to present
their case.
o Relevance: While procedural, this ensures the substantive law is applied
fairly, as unfair application (e.g., ignoring key contract terms) could violate
due process and risk annulment.
3.2. New York Convention
The New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (1958) governs the enforcement of arbitral awards globally. It intersects with
substantive law when enforcement is challenged on grounds related to the chosen law’s
validity or public policy.
 Article V(1)(c) – Award Beyond Scope:
o Allows refusal of enforcement if the award deals with matters beyond the
arbitration agreement’s scope.
o Relevance: The substantive law defines the dispute’s scope (e.g., contract
terms). If the tribunal misapplies the substantive law to rule on extraneous
issues, enforcement may be refused.
o Example: A tribunal applies English law to a contract dispute but awards
damages for tort claims not covered by the contract. An enforcement court
may refuse enforcement under Article V(1)(c).
 Article V(2)(b) – Public Policy:
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o Allows refusal of enforcement if the award violates the enforcing state’s

public policy.
o Relevance: The chosen substantive law must align with the public policy of
the enforcement jurisdiction. If the substantive law permits an illegal practice
(e.g., bribery), the award may be unenforceable.
o Example: An award based on a contract governed by a law allowing bribery is
enforced in France but refused in the UK, where anti-bribery laws are strict
public policy.
 Article V(1)(a) – Invalid Arbitration Agreement:
o Allows refusal if the arbitration agreement is invalid under the law chosen by
the parties or the seat’s law.
o Relevance: While primarily about the arbitration agreement, this indirectly
affects substantive law if the agreement’s validity hinges on the substantive
law (e.g., capacity to contract).

4. Interplay with Mandatory Rules and Public Policy

Your prior input highlighted a key issue: What happens if the chosen substantive law
conflicts with mandatory rules or public policy of the seat or enforcement jurisdiction?
Let’s expand on this, integrating UNCITRAL and New York Convention frameworks.
4.1. Mandatory Rules
Mandatory rules are non-negotiable provisions of a jurisdiction’s law that apply regardless of
the parties’ chosen law. These may include:
 Seat’s Mandatory Rules: Part of the lex arbitri, such as due process or arbitrability
requirements.
 Enforcement Jurisdiction’s Rules: Laws like anti-corruption or competition
regulations.
 Third Jurisdiction’s Rules: Rarely, mandatory rules of a country with a strong
connection to the dispute (e.g., where the contract is performed).
Application:
 The tribunal applies the chosen substantive law unless it violates mandatory rules of
the seat (lex arbitri) or enforcement jurisdiction.
 Under Article 28(1) of the UNCITRAL Model Law, the tribunal respects the parties’
chosen “rules of law,” but Article 34(2)(b)(ii) allows the seat’s court to set aside an
award if it violates the seat’s mandatory rules or public policy.
 Similarly, Article V(2)(b) of the New York Convention allows enforcement courts to
refuse awards that violate their public policy or mandatory rules.

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Example: A contract between a German company and a South African company, governed by
Swiss law, includes a clause permitting late payments with high penalties. The arbitration is
seated in Singapore. Swiss law allows the penalties, but Singapore’s lex arbitri (IAA) deems
excessive penalties contrary to public policy. The tribunal applies Swiss law but caps
penalties to align with Singapore’s mandatory rules, avoiding annulment under Article 34(2)
(b)(ii). If enforcement is sought in South Africa, the court may refuse enforcement under
Article V(2)(b) if the penalties violate South African public policy.
4.2. Public Policy
Public policy is a subset of mandatory rules, reflecting fundamental principles of a
jurisdiction (e.g., prohibiting corruption, protecting human rights). It acts as a safeguard at
both the seat and enforcement stages.
 At the Seat: Under Article 34(2)(b)(ii) of the UNCITRAL Model Law, an award may
be set aside if it violates the seat’s public policy. Courts interpret public policy
narrowly to avoid undermining arbitration.
 At Enforcement: Under Article V(2)(b) of the New York Convention, enforcement
may be refused if the award violates the enforcing state’s public policy. This is also
interpreted narrowly to promote enforcement.
Example: A contract governed by a hypothetical law permitting child labor is arbitrated in
London (seat). The tribunal applies the chosen law, but the English court sets aside the award
under Article 34(2)(b)(ii) because child labor violates UK public policy. If enforcement is
sought in the U.S., the court may refuse under Article V(2)(b) for the same reason.
Key Principle:
 Party Autonomy with Limits: The UNCITRAL Model Law (Article 28) and New
York Convention (Article V) uphold party autonomy in choosing substantive law but
subordinate it to mandatory rules and public policy to ensure fairness and
enforceability.

5. Practical Examples and Complexities

To deepen your understanding, here are additional examples and complexities involving
substantive law:
Example 1: Conflict with Seat’s Public Policy
 Scenario: A contract between a UAE company and a Malaysian company, governed
by UAE law, allows interest on late payments. Arbitration is seated in Singapore.
UAE law permits interest, but Singapore’s public policy (hypothetically) prohibits
usury.
 Application: The tribunal applies UAE law per Article 28(1) but reduces the interest
rate to avoid violating Singapore’s public policy, ensuring the award survives a
challenge under Article 34(2)(b)(ii). If enforced in Malaysia, the court reviews the
award under Article V(2)(b) and enforces it, as Malaysia permits interest.

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 Complexity: The tribunal must balance the chosen law with the seat’s public policy,
requiring careful analysis of mandatory rules.
Example 2: Non-State Law in Investment Arbitration
 Scenario: A Qatari investor arbitrates against Egypt under a BIT, seated in Paris. The
BIT allows parties to choose “rules of law,” and they select the UNIDROIT
Principles.
 Application: French lex arbitri permits non-state law, so the tribunal applies the
UNIDROIT Principles per Article 28(1), supplemented by the BIT and international
law. The award is enforceable under the New York Convention, as it complies with
French public policy (Article V(2)(b)).
 Complexity: Non-state law introduces uncertainty, as principles like UNIDROIT are
less defined than national laws, requiring tribunals to interpret broadly.
Example 3: No Choice of Law
 Scenario: A contract between a Russian company and a Brazilian company for oil
exploration, arbitrated in Stockholm, is silent on governing law.
 Application: Per Article 28(2), the tribunal applies conflict of laws rules and selects
Brazilian law, as the oil field is in Brazil (closest connection). The tribunal interprets
exploration rights under Brazilian law, ensuring compliance with Swedish public
policy (Article 34(2)(b)(ii)).
 Complexity: The closest connection test is subjective, and tribunals may differ on the
chosen law, affecting predictability.

6. Confusing Questions and Answers

To address potential confusion, here are answers to tricky questions about substantive law:
Q1: Can a tribunal ignore the parties’ chosen substantive law?
 A: No, Article 28(1) of the UNCITRAL Model Law mandates applying the chosen
law, unless it violates the seat’s mandatory rules or public policy (Article 34(2)(b)
(ii)). Ignoring the chosen law risks annulment or non-enforcement (Article V(1)(c),
New York Convention).
Q2: What if the substantive law conflicts with the law of the contract’s performance?
 A: The chosen substantive law prevails unless the performance jurisdiction’s
mandatory rules are deemed overriding by the seat or enforcement court. For
example, if English law governs a contract performed in Saudi Arabia, the tribunal
applies English law, but Saudi courts may refuse enforcement if it violates local labor
laws (Article V(2)(b)).
Q3: Can parties choose different substantive laws for different parts of the contract?

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 A: Yes, under Article 28(1), parties can choose “rules of law,” allowing dépeçage
(splitting laws). For example, English law for payment terms and French law for
delivery terms. The lex arbitri must permit this (e.g., Swiss law allows it).
Q4: How does public policy differ between the seat and enforcement jurisdiction?
 A: Public policy is jurisdiction-specific. The seat’s public policy (Article 34(2)(b)(ii))
governs annulment, while the enforcement jurisdiction’s public policy (Article V(2)
(b)) governs enforcement. Courts apply narrow interpretations, but differences (e.g.,
stricter anti-corruption laws in the U.S. vs. France) can lead to inconsistent outcomes.

7. Practical Tips for Applying Substantive Law

1. Draft Clear Governing Law Clauses: Specify the substantive law explicitly (e.g.,
“This contract is governed by New York law”) to avoid uncertainty.
2. Consider the Seat and Enforcement Jurisdictions: Ensure the chosen law aligns
with the seat’s and potential enforcement jurisdictions’ public policy to avoid
challenges (Articles 34, V).
3. Understand Non-State Law: If choosing non-state law, verify the lex arbitri permits
it and clarify its scope (e.g., specific UNIDROIT provisions).
4. Anticipate Conflicts: Analyze mandatory rules of the seat, performance, or
enforcement jurisdictions to mitigate risks of annulment or non-enforcement.
5. Study Key Frameworks: Review Article 28 of the UNCITRAL Model Law and
Article V of the New York Convention to understand limits on substantive law
application.

8. Conclusion
The substantive law is the lens through which tribunals resolve the merits of international
arbitration disputes, guided by party autonomy (Article 28, UNCITRAL Model Law) but
constrained by mandatory rules and public policy (Article 34, UNCITRAL; Article V, New
York Convention). Whether chosen expressly, impliedly, or by tribunal discretion, the
substantive law shapes outcomes, from contract interpretation to remedy awards. Its interplay
with the seat’s and enforcement jurisdictions’ legal frameworks requires careful navigation to
ensure enforceability.

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