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The Applicability of International Law as Governing Law of State Contracts

Australian International Law Journal
Volume 17 (2010)

Abstract: Whether international law is applicable to govern state contracts has long been discussed from different perspectives. This article revisits this issue from the perspective of powers of courts and arbitral tribunals in applying international law. To this end, the article examines the choice of laws rules applicable in a number of courts and arbitral tribunals to determine whether they have the power to apply international law to state contracts in three situations: where the parties have chosen international law; where the parties have chosen only a national law; and where the parties have not chosen a law to govern the contract. The article concludes that a national court has no power to apply international law while arbitral tribunals are obliged to apply international law where it has been chosen by the parties. Most arbitral tribunals may also apply international law where the parties have not made a choice of law. However, where the parties have chosen only a national law to govern the contract, most courts and tribunals have no power to apply international law to it, except for special cases where the rules governing the court or the arbitral tribunal allow otherwise. While this article focuses on the applicability of international law, most of the discussions in it will equally apply to other forms of non-national law, in particular the choice of lex mercatoria, which is also found in a number of state contracts.

To cite this article: Dang, Hop. The Applicability of International Law as Governing Law of State Contracts [online]. Australian International Law Journal, Vol. 17, 2010: [133]-158. Availability: <http://search.informit.com.au/documentSummary;dn=957828868676130;res=IELHSS> ISSN: 1325-5029. [cited 26 May 16].

Personal Author: Dang, Hop; Source: Australian International Law Journal, Vol. 17, 2010: [133]-158 Document Type: Journal Article ISSN: 1325-5029 Subject: International law; Public contracts; United Nations Commission on International Trade Law; Legal polycentricity; Arbitration (International law); International Centre for Settlement of Investment Disputes; Peer Reviewed: Yes Affiliation: (1) Senior Associate, Allens Arthur Robinson, and Visiting Senior Fellow, Law Faculty, National University of Singapore, and Visiting Senior Fellow, Law Faculty, University of New South Wales; Visiting Lecturer, Diplomatic Academy of Vietnam, and Fellow, Singapore Institute of Arbitrators

Database: Humanities & Social Sciences Collection