Auxano law -DELOCALISATION OF ADHOC ARBITRAL PROCEEDINGS

ABSTRACT:

Delocalisation of international commercial arbitration is a concept which has its foundation in the autonomy of parties. Conceptually, delocalisation seeks to detach an international commercial arbitration from any form of control by the law of the place in which the seat of the arbitral tribunal is located. In other words, delocalisation is a concept which postulates that once parties to international arbitration have chosen the law governing their commercial relations in the arbitration agreement, arbitral proceedings arising out of such exercise of autonomy should operate supra-naturally’. Can an arbitral tribunal effectively conduct its proceedings independently of national laws or the jurisdictional influence of the courts of the seat of the arbitral process? This paper seeks to examine the concept and purport of delocalisation as a phenomenon in international commercial arbitration. The paper also considers the extent to which the proceedings of an arbitral tribunal may be insulated from the influence of national law and judicial system of the seat of the arbitral tribunal. Is delocalisation a mere theoretical conjecture in international commercial arbitration or does it find a practical application within international commercial arbitral process? The paper seeks to examine this concept and will attempt to answer these questions one way or the other.

1.00     INTRODUCTION

The concept of delocalisation appears to be subject to different and sometime confusing interpretations. To some[1], delocalisation means or provides a solution to the conflict of laws problem in international law by resorting to the lex mercatoria in resolving international commercial disputes. That is, delocalisation is simply the adoption of the general principles of laws which apply to merchants or rules which are common to transnational commercial transactions. But to some others[2] delocalisation of international commercial arbitration contemplates a ‘supra-national’ arbitral proceeding free from all vestiges of national laws and institutions including national courts of the seat of arbitration. Put simply, delocalisation shields

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