The selection of the law applicable to the arbitration agreement is one of the most controversial issues discussed in international arbitration. Many authorities and case law have supported different criteria to be applied as a general rule.
Particularly, the determination of the law governing the agreement to arbitrate becomes a serious concern when the lex contractus and the lex arbitri selected by the parties differ.
The purpose of this paper is to analyze the most relevant positions upheld by the authorities with the aim of drawing some general conclusions that could be applied in those cases where there is not a clear solution to be implemented.
This study will examine the conflict-of-law rules related to the lex causae and the lex arbitri selected by the parties, as it may be used as a source for determining the implied choice made by the parties to a contract.
In addition, the law governing the contract to arbitrate may establish different requirements with regard to its formal validity. Consequently, the selection of the law applicable to the arbitration agreement may have a deep impact on the validity and extension of the contract to arbitrate to non-signatories.
Iurgium [previously Spain Arbitration Review]