Abstract
The feature that most attracts private parties from different states to referring their dispute
to an arbitral tribunal is the flexibility of the procedure. However, the differences between
arbitration and court litigation are not only procedural, but they concern the substance of the
parties’ cases. This is because in the realm of international arbitration the law applicable to
the merits of the case is determined according to other provisions than the statutory conflict
of laws rules. Depending on the arbitration law of the seat, the entire private international
law statute can be captured in a single provision – “absent the parties’ choice, the arbitral
tribunal shall apply the rules of law which it determines to be appropriate”. It follows that
arbitral tribunals, unlike state courts, are not bound by the conflict of laws rules of the
forum. What’s more, the merits of a dispute submitted to arbitration may be governed not
only by some national body of law (e.g. the Polish Civil Code) but also by a non-state, nonnational
set of provisions – “rules of law” (e.g. the UNIDROIT Principles of International
Commercial Contracts).
The aim of this article is to analyze how the parties and tribunals may make use of their
autonomy in determining the law applicable to a dispute. Furthermore it examines whether
there are any limits thereto in light of the Rome I Regulation.
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