Lobovyk B. Applying of non-national law in international commercial arbitration.

This thesis is devoted to theoretic and practical problems research in the sphere of applying substantive non-national law in international commercial arbitration. On the basis of analysis of international documents, arbitration rules of the major international commercial arbitration institutions, case law and arbitral awards, legislation of foreign countries and Ukrainian legislation in this sphere, the author has undertaken a research of various steps of applying sets of substantive rules not belonging to a national law of a particular country by an arbitration tribunal. Having considered the above-mentioned, the author made the following conclusions: Ukrainian procedural laws and the Arbitration Rules of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine should be amended to allow the parties to an arbitration dispute to choose sets of substantive rules of law not belonging to a particular national law (i.e., non-national law) as a governing law; unlike judges in national courts, the arbitrators are not bound to apply the rules of private international law of their seat to determine the proper substantive law, which on one hand gives an arbitrator significant flexibility if compared to a judge of a national court, but on the other hand exposes the arbitrator to a set of uncertainties and practical complications at various stages of applying the law chosen by the parties, especially where the parties opted for non-national substantive law; the international commercial arbitration practice has not developed a uniform approach to dealing with interpretation of the non-national law in question and for this reason generally at the interpretation stage arbitrators tend to combine competition and inquiry approaches, mostly relying on expert opinions and citations of doctrine; in case where an arbitration tribunal is to decide a case based on general principles of law chosen by the parties to a dispute as governing substantive law, it generally faces challenges in identifying proper principles of law common to all national jurisdictions/legal orders and therefore it usually fosters creative approach to identifying and interpreting the underlying principles of law; the practice further indicates that hybrid choice of law clauses requiring arbitrators to apply certain sets of national law rules in combination with particular rules not belonging to any system of national law prove to be most challenging to arbitrators and trigger additional complications, delays and expenses for the parties at the dispute settlement stage (although such choice of law may be fully justifiable due to a particular nature of dealings or dispute between the parties); lex mercatoria appears to be a popular form of non-national substantive law governing dispute between the parties and is construed as set of customs common in the area of business of the parties and known to them; French law appears to be most flexible and developed to properly govern the parties' choice of a non-national law governing their dispute settled by arbitration, including at the stage of recognition and enforcement of the relevant arbitration award, and may be used as a basis for improving the relevant Ukrainian laws.