How Do You Determine The Procedural Law Governing An International Arbitration?

The procedural or "curial law" which governs an international arbitration can have a tremendous impact on the proceedings as the arbitral tribunal will turn to it in order to decide any number of key matters, ranging from whether or not the dispute is actually capable of being referred to arbitration, to whether or not to order interim measures to the final judgment itself.

The purpose of this briefing note is both to review the existing theories concerning how arbitral tribunals should determine the procedural law and to look at the question as to how one determines the seat of an arbitration in the absence of agreement.

English law clearly favours the orthodox theory whereby the law of the seat is necessarily the procedural law governing the arbitration. Authority for this was confirmed in Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] AC 334 where the Court held that the presumption in favour of the