Where Do You Sit If There Is No Seat? The Relevance Of The 'Procedural Law' In International Arbitration

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Where Do You Sit If There Is No Seat? The Relevance Of The 'Procedural Law' In International Arbitration

Well-drafted arbitration clauses in international contracts

state that any arbitration is to have its seat in a particular

location — for example, to name some of the recognised

international arbitration centres, London, Paris or

Singapore.

This does not just mean that the arbitral tribunal will be

"sitting" in that particular place, and that hearings

will be conducted there. The choice of a seat brings with it

the adoption of the laws relating to arbitration of that

particular place. What happens if the arbitration clause does

not specify the seat? What issues may be affected by the law of

the seat — is it just procedural matters or can the law

of the seat have a more substantial impact? This article

reviews these questions.

The seat of the arbitration

Arbitration as a process is based on party autonomy, and the

ability of the parties to choose their own desired procedure:

procedural flexibility is often perceived as one of the

advantages of arbitration. But the law of the seat can impose

limits on that procedural freedom. The effect of the law of the

seat on an arbitration was recognised as long ago as the Geneva

Protocol on Arbitration Clauses 1923 (signed under the auspices

of the League of Nations):

" 2. The arbitral procedure, including the

constitution of the arbitral tribunal, shall be governed by the

will of the parties and by the law of the country in whose

territory the arbitration takes place..."

The UNCITRAL Model Law1, which has become the

basis for the arbitrations laws of many jurisdictions, provides

a legal framework that is supportive of arbitration, without

undue interference by national Courts in the parties'

private dispute resolution method. Adopting a country with

arbitration laws based on the Model Law as the seat may be a

relatively safe bet...

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