Determining the Law Governing Performance in International Commercial Arbitration: A Comparative Study

Persons entering into commercial agreements of a transnational nature have often shown a preference for the arbitration tribunal rather than the court of law as the instrument for settling disputes which may arise between them. The parties, who may be either individuals or legal persons, such as corporations, manifest their desire to employ arbitration by providing for its use in the arbitration clause of the contract. It is generally agreed that such a clause, whether or not it is considered as part of the main contract, is consensual in nature. But the significance of the agreement to arbitrate is determined by the legal nature attributed to the arbitration process by the forum in which the clause is sought to be enforced. This article describes the influence of various types of arbitration clauses on the rules to be applied by the arbitrators in resolving disputes which arise in the interpretation and performance of the commercial contract