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Complex Litigation | MONDAY, MAY 22, 2017 | S13
approach, after characterizing the disputed issue as “contract” or “tort”, the Arbitral Tri- bunal would have, as the case may be, applied the corresponding con icts rule likely leading to different results (e.g., party autonomy in the case of contract, lex locus delicti in the case of tort). Such does not seem to have been the approach observed by international commercial arbitrators, who prompted by pragmatic considerations, and relying on a “mixed” or “multi-aspect” choice-of-law approach, tend to expand the reach of the proper law of the contract to tort issues asso- ciated with the conclusion of the contract or the performance of contractual obligations.
Of course, an easy counter to this view is that the parties commemorated their agree- ment in the contract language. If the parties agreed only to a “narrow” choice-of-law clause, they did not agree to what law would govern tort claims. An agreement should not be imposed where it was never made.
A better explanation may be that arbi- trators see their role as removing the sorts of uncertainty that parties often associate with nebulous concepts such as “choice-of- law principles” or “interest analysis.” The Supreme Court explains:
Uncertainty will almost inevitably exist with respect to any contract touching two or more countries, each with its own substantive laws and conflict-of-laws rules. A contractual provision specify- ing in advance the forum in which dis- putes shall be litigated and the law to be applied is, therefore, an almost indispens- able precondition to achievement of the orderliness and predictability essential to any international business transaction. [Absent such agreements, one enters] the dicey atmosphere of ... a legal no- man’s-land [which] would surely dam- age the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements, Scherk v. Alberto-Culver, 417 U.S. 506, 516-17 (1974). In this way, international arbitrators’ approach to narrow choice- of-law clauses may be an expression of dissatisfaction with the typical choice- of-law analysis.
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