It is important to distinguish the seat of arbitration from the place of the hearing:3 whereas the first one is a purely legal notion, with its own set of consequences (see below), the latter is an operational (and geographical) choice. Practically, the parties may choose one country and its arbitration laws as the procedural law of the arbitration, but hold hearings and all other remaining activities in a different country without ever setting foot in the country chosen as the seat.
III. Party autonomy in choice of seat
The parties are generally free to agree on the seat of arbitration.4 Under some rare arbitration rules, the choice of the parties is limited.5 For instance, the ICSID Additional Facility Rules limit the choice of place of arbitration to the States parties to the New York Convention.6
Failing an agreement between the parties, the seat may be determined by the arbitral tribunal or the administering arbitral institution, in accordance with and subject to the arbitration rules chosen by the parties.7 However, the ICSID Arbitration Rules provide that the Tribunal shall meet at the seat of ICSID, Washington, D.C., failing agreement between the parties to the contrary.8
The procedural law of the arbitration (lex arbitri) is an outer framework of the arbitration proceedings. Lex arbitri deals with a range of issues, but there are opinions that it mostly provides a “gap-filling” mechanism, absent parties’ agreement or specific provisions in the applicable arbitration rules. Seeing that the choice of the seat may ultimately determine whether the award is enforceable or not, the importance of a proper choice of lex arbitri is imperative, as it deals with the following:
See further Applicable law to the proceedings.
V. Choice of the seat of arbitration
Apart from the legal aspects of the choice of seat, certain practical aspects can be taken into consideration when choosing a seat of arbitration,11 such as: the role and attitude of the local courts in terms of supervision and assistance,12 implementation of the New York Convention to maximise enforceability,13 geographical location of the subject-matter in dispute,14 ease of transport15 and suitable facilities (i.e. proximity of evidence, costs).16
For example, many bilateral investment treaties (BITs) have a provision which indirectly determines the place of arbitration, by stating that it should be in a State that is a party to the New York Convention.17 Other BITs specifically provide that the place of arbitration shall be a specific place, such as Paris,18 Stockholm,19 The Hague,20 etc.
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