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(7) Sources of rules (Three potentially relevant sources of rules (The…

- - - - Art 28 ML: “Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.”
        
        Indirect. Tribunal applies law determined by choice of law rules which it considers appropriate.
        Arbitrator job is to identify choice of law rules which it thinks is appropriate to dispute and then to apply them.
        -> will decide law governing substantive dispute
        
        The English and Americans are good examples of the voie indirecte approach.
        E.g. the Arbitration Act 1996, s.46(3) provides that “if or to the extent that there is no… choice or agreement, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.”
    - - UNCITRAL Rules, Art 35.1: “Failing such designation by the parties, the arbitral tribunal shall apply the law which it determines to be appropriate.” [No need to identify choice of law rule]
        
        similar approach: French Civil Code of Procedure, Art 1511 provides that in the absence of party-chosen rules of law, the tribunal may resolve the dispute “in accordance with the rules of law it considers approrpriate.”
      - specialised national laws
        
        E.g. the Swiss Law on Private International Law, Art 187(1) provides that:
        “the arbitral tribunal shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to the rules of law with which the case has the closest connection.”
        
        This is even more prescriptive than the direct approach. Statute tells the tribunal u must apply THIS. No discretion. All they do is apply it. Rare and detailed approach. Swiss has v detailed arbitral statitutes
      - What if u have arbitration seated in ML country but taking place under uncitral rules as a method of procedure.
        What happens if institutional rules conflict with national laws?
        E.g. suppose arbitration in Switzerland subject to UNCITRAL rules. Switzerland specifies its own choice of law rule, but UNCITRAL rules allow arbitrators direct free choice of applicable law.
        
        :star: General consensus is that institutional rules prevail -> selection of UNCITRAL RULES, on the basis that the parties have chosen them (and thereby impliedly chosen their approach to choice of law).