The author attempts to unravel the close conceptual and practical connection between consent and autonomy. The chapter argues that consent is the vehicle of autonomy, vehicle through which States give themselves their own rules, both primary rules and secondary rules. Because the exercise of autonomy in the international society faces contextual limits, linked to the self (auto) and to the law (nomos), it is claimed, that consent appears not only to be characterized by power, but also by limitations. This holds true for consent in international law-making as much as for consent in international dispute settlement. The chapter focuses on both categories, discussing the theory of sources and institutional law-making with respect to the former and jurisdictional matters and applicable law with respect to the latter. It concludes – prospectively – with some thoughts on the future of autonomy and consent in international legal theory and practice

Despite the critical importance of applicable law in international arbitration, the concept remains misunderstood and often ignored. In the field of international investment law, whether the arbitration proceedings arise from an investment treaty or from a contract, the cornerstone principle of party autonomy applies when it comes to the choice of applicable law, as provided, for example, in article 42 of the ICSID Convention. Even that principle, however, is subject to debate, for example with respect to whether initiating arbitration proceedings under an investment treaty amounts to an implicit choice of applicable law. In an attempt to clarify the notion of applicable law, this contribution first distinguishes the rules of decision, i.e. the law applicable to the specific claims submitted by an investor against a state, from incidentally applicable law, i.e. the other laws which may be relevant for the resolution of the dispute but that do not form a basis for the decision on the merits. In a second part, this contribution analyses several questions arising from the application of choice-of-law provisions in practice, with an emphasis on article 42 of the ICSID Convention. Finally, the consequences of erring in the application of the correct applicable law are examined.

The multi-faceted role of arbitrators is complex and protean. While there is consensus on the fact that the nature of the international arbitrator’s role entails according the arbitrator wide-ranging powers and that the arbitrator also undertakes a panoply of obligations, the scope of these powers and duties is not always well defined.Views about the nature and scope of these powers and duties might diverge depending on whether arbitrators are seen as service providers, justice purveyors, or both. Following a brief overview of this core question, the contribution proceeds to identify the sources of an arbitrator’s powers. Next, the most important duties of international arbitrators, including those pertaining to ethical obligations, the need to ensure due process, the necessity to apply the proper law, the duty to provide a reasoned award, and several others are explored. This contribution also highlights the most important rights of international arbitrators, such as the right to receive good faith cooperation from the parties, as well as the rights to remuneration and immunity, amongst others. Finally, we make some observations on ways in which the rights and duties entailed by the complex mandate of arbitrators can be reconciled in the event of conflict.

Despite its prolonged existence, the relationship between the European Union and international commercial arbitration still raises many unanswered questions, amongst which that of the role and place of European Union law in arbitral proceedings. A specificity of EU law is that despite originating from the EU legal order, it forms an integral part of the legal order of each Member State. Consequently, the interpretation and application of the laws of a Member State may require that arbitrators look beyond the domestic realm when EU rules are at issue and take into account the context of the EU legal order. This contribution analyses four salient issues in this regard: First, it asks whether the place of arbitration matters for the application of EU law both with respect to procedural matters and concerning the merits of disputes. The second and third parts of this contribution address, respectively, the application of non-mandatory norms and mandatory EU rules in the context of arbitration proceedings. Finally, some insights are provided on the state of play with respect to the possibility for arbitration tribunals to ask a preliminary question to the CJEU on a matter of EU law.

This chapter focusses on a narrow topic: the law applicable to post-award issues. It deals in turn with the law applicable to recognition and enforcement proceedings, to annulment proceedings, and to post-award issues in investment arbitration. Enforcement of arbitral awards typically takes place within the framework of the 1958 New York Convention, but this chapter will also refer to relevant provisions of the UNCITRAL Model Law on Commercial Arbitration, the 1961 Geneva Convention and the ICSID Convention. Issues covered include the law applicable to the following issues: the validity of the arbitration agreement, arbitrability, arbitral procedure, competence of the tribunal, scope of the dispute, public policy, finality of the award and annulment. Particular attention will be given to the extent to which potentially diverse answers arising from the designation of national law may be mitigated by evolving transnational norms for some of the issues examined.

The chapter discusses arbitration’s function in the development of the substantive law applicable to the resolution of an arbitral dispute. In the context of commercial arbitration, this will frequently include national commercial law, as well as, to a restricted extent, non-national sources; while in investment arbitration, this will most commonly include international investment law – possibly in addition to the applicable national law. Undoubtedly, arbitration has also contributed to the development of the procedural law of arbitration through its practice; but this chapter only refers sporadically and occasionally to instances of procedural law development.

Private international law is often considered and antiquated and formalistic methodology, not particularly relevant for international commercial arbitration. Actually, private international law – in all three its components: conflicts of jurisdiction, conflict of laws and recognition and enforcement of decisions – is crucial to international arbitration. Almost all issues that arise in connection with an international arbitration raise the question of the law under which they are to be solved and, very often, of jurisdiction. This contribution explores the different situations that raise issues of private international law in the context of international arbitration and identifies the most commonly adopted solutions. It also explains that, particularly as regards the applicable law, the rules of private international law applicable before domestic courts are not suitable when conflict of laws issues arise before arbitral tribunals. More generally, the point is made that in many situations the conflict of laws method does not yield satisfactory solutions because, either the relevant conflict rules are not clear, or they designate a national law that often will not contain a specific solution for arbitration. In any case, the conflict of laws method may lead to uncertainty and to a fragmentation of the answers to important arbitration law problems, which is at odds with arbitration’s aspiration to be an international dispute settlement mechanism with a predictable, uniform and non-parochial solutions.

An arbitration agreement expresses the consent of the parties to a legal relationship to submit the settlement of their disputes to an arbitral tribunal. As such, it is a unique type of contractual arrangement. While it has a contractual origin, it also confers the arbitral tribunal a jurisdictional power to settle legal disputes which would otherwise be submitted to State courts, hence bearing jurisdictional effects. This dual nature is further demonstrated by the variety of rules governing arbitration agreements, mainly contracts and procedural law, to such extent that it is a commonplace to assert nowadays that arbitration is dual or sui generis. These two aspects further need to be assessed by taking into account the unique legal framework enacted over the years to safeguard or limit the legal effects of arbitration agreements. This Chapter further dives into the sui generis nature of arbitration agreements and the dialectical tension between the contractual and jurisdictional aspects of arbitration as a dispute settlement mechanism. While the validity and applicability of arbitration agreements, mostly inspired by contracts law and the principle of party autonomy, determine the arbitrators’ jurisdiction, the legal mechanisms triggered by arbitration agreements are mainly focused on safeguarding the arbitral tribunal’s jurisdiction.

In this Compendium we have encouraged the authors to address both commercial and investment arbitration through the lens of their respective topics. This contribution highlights those areas in which investment arbitration has no or very little analogue with commercial arbitration. It sets out the incontrovertible fact that the state’s presence has certain ramifications.Investment treaty arbitration is ‘arbitration without privity’, in which a state has given its consent in advance to arbitrate a dispute submitted by an unknown (but defined) class of persons about an unknown (but defined) type of claim arising from an unknown (but defined) project. These uncertainties mean that objections to the jurisdiction and admissibility of claims are frequent, indeed almost de rigueur.The notion of applicable law in investment arbitration is complex, involving intersections between public international law and municipal law, between different public international law regimes, and even scrutiny as to whether investment tribunals can themselves develop law.State immunity can hinder the execution of awards. Because of the public interest in arbitral awards, transparency has come to be regarded (at least theoretically) as an essential attribute of investment arbitration. This chapter offers a smorgasbord of some of the most notable particularities of investment arbitration.

The procedural rules on dispute settlement are primarily contained in Part XV UNCLOS. These rules set out the conditions for UNCLOS tribunals to establish and exercise their compulsory jurisdiction hear contentious disputes. In addition to disputes between States, UNCLOS also grants the Seabed Disputes Chamber advisory jurisdiction pursuant to Article 191 UNCLOS. ITLOS as a full tribunal, however, has also found that it may exercise advisory jurisdiction despite the absence of an explicit provision to that effect under UNCLOS and the ITLOS Statute. This Chapter critically examines UNCLOS tribunals’ decisions relating the conditions for the establishment of compulsory jurisdiction in contentious proceedings under Part XV and the establishment of advisory jurisdiction of both the SDC and ITLOS as a full tribunal, in order to determine the extent to which UNCLOS tribunals have clarified the procedural law under the Convention.

The story finally gets to the interpretation and application of legal norms to the facts of the case. This chapter deals with the first interpretive step, called law-ascertainment, where the interpreter identifies the rules that are relevant to the case at hand. Donning the hat of an explorer, the interpreter maps the body of norms precedents in concentric circles – starting with the sources closest to the centre of gravity of their judicial regime and gradually venturing into more peripheral territory. The results of these practices explains the degree of cohesion or fragmentation in international law. As the legal system grows more complex, interpreters no longer have time and resources to master it all, and prove increasingly partial and selective in their legal readings. The emergence of self-contained regimes is largely due to epistemic constraints which, in turn, reflect the social structures of the international judicial community.

This chapter considers the following two questions about the future of freezing injunctions. First, what changes should be made to the jurisdictional preconditions of freezing injunctions in order to effectively fulfil the international function of the rules of jurisdiction? Second, by what means and on what basis should we allocate regulatory authority in this field? A ‘bold proposal’ for an international agreement is considered. While that would be the ideal solution in this field, some modest solutions are then proposed. Modest solutions rely on the implementation of changes only at the domestic level. The counter-arguments to the proposals based on functional theories of jurisdiction are also considered. The functional theories are heavily dependent on the principle of territoriality. The role of the doctrine of forum non conveniens is discussed in the context of modest proposals.

This chapter discusses the legal nature of the Security Council. It first defines the law applicable to the Council and then its nature as an organ of the UN, not a separate legal entity. It addresses and dismisses attemps to compare the Council to an executive, legislative or quasi-judicial body. Rather it is a UN organ with the primary resposibility for international peace and security, and that is what defines its legal nature. ThecChapter also addresses issues of the supremacy of legal obligations under the UN Charter over other sources of law, including binding decisions of the Council.

As the international business community and their legal advisors have become more sophisticated in choosing the fora for resolving their disputes, a number of ‘international’ courts have been established to compete with arbitration in the lucrative international dispute resolution market. This chapter examines the features of these courts that have been designed in response to the perceived strengths and deficits of national courts in relation to arbitration so as to maximise those strengths and reduce those deficits for courts and improve their competitive advantages for those in need of international commercial dispute resolution services.

Legal tech (LT) companies operating in litigation predominantly address B2C relationships, which is odd against the overall LT backdrop where B2B solutions prevail.1 A ‘no win no fee’ policy, whereby consumers are only charged for success, is popular among LT companies that manage claims.2 Even though their contingency fees tend to be significant,3 they attract consumers who would otherwise have abandoned a claim as a result of rational apathy due to its small value. The automated management of claims has impacted consumer access to justice as the activity of LT companies has led to an increase in redress for small value claims.4