To Continue Nationalizing or to De-Nationalize? That Is Now the Question in International Arbitration – Vol. 12 No. 3-4

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Author: Otto Sandrock*

Published: October 2003

Applicable Law
Lex Mercatoria

Description: Almost four decades ago, the idea of the lex mercatoria, which had been dormant for several centuries, was revived. In our modern era, that idea deals with the “de-nationalization” of the substantive law to be applied by international arbitral tribunals. A few years later, the doctrine of the “de-nationalized,” “delocalized,” “a-national,” “supranational,” “transnational,” “expatriate” or “floating award” emerged and was then extended from the mere instance of the award, to the whole range of arbitral proceedings. In consequence, the discussion over the procedural issues thus raised then sailed under the flag of “de-nationalized,” “delocalized” or “transnational” arbitral proceedings. Since then both doctrines, the lex mercatoria and the idea of the de-nationalization of the arbitral proceedings, have been, and still are, discussed intensively in international arbitration. In the meantime, they seem to have been already widely accepted in French jurisprudence and doctrine. The courts and doctrines of other European countries are more reluctant, however, to endorse these or similar ideas, or they have even rejected them. In particular, the issue of the “de-nationalization” of the arbitral proceedings has now most prominently been represented in an eminent opus which was published in 1999—in the English language—in France. This opus is based upon views on private international law and on international procedural law that are in sharp contrast to traditional views, prevalent not only in Germany but also in other European countries. It is more than worthwhile, therefore, to use this book as a catalyst for answering the basic question with which the theory and practice of international arbitration are now confronted more and more. That question can be reduced to the following essentials: Are the new tendencies for de-nationalization as expressed in our eminent opus compatible with the traditional doctrines of conflict of laws and of private international law of procedure? If not, do the traditional tenets governing these two fields of law need to be revised? Or…

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*LLB. (Referendar, Germany) (1953); Dr. iur. Univ. Göttingen, Germany (1955); LL.M. Yale (1956); professor emeritus at the Law Faculty of the University of Muenster; attorney admitted to the Court of Appeals in Duesseldorf; partner in Hoelters & Elsing, attorneys in Duesseldorf/Berlin/Frankfurt a. M.