Sources Of Law In International Arbitrations

The decision of the Court of Appeal in C v. D [2007] EWCA Civ 1282 provides a timely reminder of the importance of identifying the sources of law in all international commercial arbitrations.

Black-Clawson v. Papierwerke [1981] 2 Lloyds Rep 446 is probably the most important judicial analysis of the sources of law in international arbitrations. Mustill J identified three sources of law: the first was the law governing the agreement; the second was the law governing the agreement to arbitrate and the performance of that agreement; and the third was the law of the place where the reference to arbitration is conducted.

The first source of law (the law governing the agreement) will be the law that determines the merits of the dispute, for example: would a certain step amount to a repudiation of the contract; what terms will be implied into the contract; how are damages to be assessed. Very often the