Prof. Amin Dawwas
Full Professor of Private Law At the Kuwait International Law School

Abstract:

This research deals with the law applicable to the merits of International commercial arbitration under the 1985 Uncitral Model Law on International Commercial Arbitration (MAL), the 2000 Palestinian Arbitration Law (PAL) and the 1980 Kuwaiti Code of Civil and Commercial Procedures (KCCCP). It shows how the parties to the arbitration agreement may choose the substantive law applicable whether explicitly or implicitly. It makes clear whether the party can only choose a State law or whether they may also select a non-State law, e.g. lex mercatoria, to be applicable. This research also shows to which extent shall the parties, when choosing the law applicable, respect the mandatory rules, i.e. public policy rules whether they belong to the law chosen by the parties, the law closely connected to the dispute (e.g. the law of the seat of arbitration or the law of the State or States in which enforcement is prospected), or even if they are international public policy rules in nature.
This research also tackles the selection of the law applicable to the merits by the arbitral tribunal when the parties do not define it. The research shows the means through which the arbitral tribunal may select the law applicable in such cases. The arbitral tribunal may in this regard define the law applicable according to the conflict-of-laws rules it deems appropriate (MAL), apply the conflict-of-laws rules of the forum (PAL), or apply the conflict-of-laws rule that generally defines the law applicable to contracts (KCCCP). In all events, the arbitral tribunal shall take into consideration terms of the contract and trade usages.
Finally, the research concludes with certain remarks to make the definition of the law applicable to the merits of international commercial arbitration in both Palestine and Kuwait in line with the internationally accepted norms.

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