On 18 May 2022, SIArb organised a webinar on conflict of laws in international arbitration.
The webinar was moderated by Mr Dinesh Dhillon, a Partner with Allen & Gledhill LLP and SIArb’s immediate past President, and the speakers were Prof. Janet Walker, CM – Chartered Arbitrator, Atkins Chambers, Dr. Kabir Duggal – Attorney, Arnold & Porter, New York and Mr Alvin Yap – Associate, Squire Patton Boggs Singapore LLP.
Prof Walker began the presentation by setting the stage with three questions – how do we identify the governing law, ascertain the content of the law and decide which law governs the arbitration agreement. She discussed the Common Law approach and observed that the Civil law adopts a similar approach. She then cautioned that even if the governing law is confirmed, matters concerning public policy exception or the civil law concept of “fraud on the law” and mandatory rules of law could be relevant and therefore need to be dealt with.
Dr Kabir looked further into the approaches adopted in Common Law and Civil Law. Even within Common Law jurisdictions, he observed two different approaches in general viz. a textual approach against a contextual approach. In this regard, the Civil Law approach, which depends on the twin principles of good faith and common intent, would appear closer to the contextual approach.
The next speaker, Mr Alvin Yap, went on to look at the mandatory rules of law. In his view, these are public law in nature with State interest and therefore possibly beyond the scope of arbitrators to decide on their application.
Prof Walker concluded the presentation by looking at the principles of iura novit curia (tribunal knows the law and is not bound by submissions of parties) and ultra petita (tribunal is deciding on the basis or some manner of law that is not put to it by the parties). She proposed an alternative approach that would start with the issue that is raised and not the choice of law.
The presentation was followed by a lively Q&A session.
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Bernard Lim - Princeton Digital Group