This chapter explores why Swiss law is very frequently chosen as the law applicable to international commercial contracts. This chapter reviews the statistics of the ICC and the Swiss Arbitration Centre as well as surveys carried out of international commercial actors confirming that Swiss law is one of the most popular laws chosen to govern the parties’ contract. This chapter then goes on to analyse the reasons cited for the popularity of Swiss law as the law governing the parties’ contract, namely the parties’ freedom to agree on the rights and obligations in their contractual relationship, the perceived neutrality of Swiss contract law, the suitability of Swiss law to cross-cultural relationships, its commonalities with laws of several Civil law jurisdictions, namely French and German law, the fact that the Swiss Code of Obligations is concise and easily accessible and the attractiveness of Switzerland as a seat of arbitration.

This Chapter addresses how unexpected restrictions in municipal laws might frustrate parties’ autonomy by the application of “mandatory laws” that do not constitute fundamental principles of morality and justice. The Chapter analyses the definition of “mandatory law” and concludes that international commercial arbitration tribunals must follow the combined guidance of the ILA Final Report, with its emphasis on identification of “mandatory laws” as lois de police, and Article 9 of Rome I, with its limitation on applying only “overriding” mandatory laws – particularly when the allegedly mandatory laws of a third State are in question.

The Chapter also examines investment treaty disputes, where the application of mandatory laws of third States is less likely to be involved. However, treaty arbitrators are arguably in need of guidance from States and investors – perhaps as a prudential limit to arbitrators’ discretion – in assessing which of the increasing number of human rights provisions should be considered “mandatory law”.ICJ Judge Bruno Simma’s proposal regarding pre-investment “audits” of the law of the host State in relation to human rights is one way to provide such guidance. Absent guidance, uncertainties about the content of “international law” may well create uncertainties about “mandatory law” in investment treaty cases, to the detriment of ongoing public confidence in investor-State dispute resolution.

Over the last ten years, implicit consent has become one of the major points of contention in the debate about the propriety of class, mass and collective arbitration. The notion of implicit consent is critical to the development of large-scale arbitral proceedings because it allows multiple disputes to be heard at a single time, in a single forum, even if the relevant arbitration agreements are silent regarding the possibility of joint action by the claimants. The issue arises in the context of both international commercial arbitration and investment arbitration.

The divisive nature of the debate suggests that the controversy about implicit consent will continue so long as the discussion continues to be framed in its present terms. However, it may be possible to advance the conversation by expanding the nature of the analysis. Rather than focusing on implicit consent as a matter of treaty or contract interpretation, it might be beneficial to consider implicit consent from a systemic rather than individual perspective. This chapter therefore applies a dispute system design (DSD) analysis to the question of implicit consent. In particular, this discussion considers whether and to what extent the concept of ""regulatory litigation"" (defined herein as including both judicial and arbitral procedures) can be used to justify use of implicit consent as a means of addressing unanticipated risk, including unanticipated procedural risk.

The discussion proceeds as follows. First, Section II considers how regulatory litigation operates and why an analytical framework based on unanticipated risk might be necessary or useful in the context of large-scale arbitration. Section III then describes what constitutes unanticipated risk in disputes involving class, mass and collective injuries and how those issues affect dispute system design in international commercial and investment settings. Section IV addresses some of the criticisms of implicit consent and regulatory litigation by considering the nature of class, mass and collective claims, while Section V considers how implicit consent and regulatory litigation operate to overcome some of the special problems associated with transnational regulatory disputes. Section VI concludes the chapter with a number of forward-looking observations.

Despite divergencies, international commercial courts have in common the claim to be different from the ordinary courts. This chapter examines the differences in procedure between international commercial and ordinary courts by focusing on three distinctive features: namely, the cross-border character of the disputes they handle, the voluntary establishment of their jurisdiction and their arbitration features. It starts by exploring the notion of an international dispute across various international commercial courts and identifies broad internationality criteria. Then, this chapter turns to the voluntary jurisdiction of international commercial courts. It illustrates that in order to attract disputes, international commercial courts had to ease the establishment of their jurisdiction and loosen their jurisdictional requirements. Lastly, it is demonstrated how international commercial courts and their arbitration features attempt to beat the allegedly ‘unbeatable’ virtues of arbitration. In conclusion, this chapter assesses the procedural differences between international commercial and ordinary courts and their potential to enhance the attractiveness of the former over the latter.

This chapter looks at the current relationship between international commercial courts (ICommCs) and international commercial arbitration (ICA). It first covers the historical background and current drivers for international dispute resolution. It finds ICommCs are of complex identity whose utility will be tested by market choice. The chapter then discusses what is meant by autonomy in the present context, and continues by looking at the needs and requirements of international dispute resolution (‘imperatives’) from a number of perspectives: those of the consumer (the ‘business imperative’), of governments (the ‘political imperative’) and of non-arbitral decision-makers (the ‘jurisprudential imperative’). From that review, a measure of interdependence between ICA and ICommCs emerges. The chapter ends with the conclusion that ICA and ICommCs will enjoy a competitive and collaborative, but not hybrid, relationship.

Introduces a masterful work by Francisco De Goya presently housed in the Prado Museum titled “Duel with Clubs.” The painting’s image is used as a metaphor to capture historical prejudices in the U.S. common law that subordinated arbitration to judicial proceedings. This introduction identifies the four major premises comprising the legacy skeptical U.S. common law view of arbitration generally and international arbitration in particular.