Julian D.M. Lew, Q.C. on “Iura Novit Curia and Due Process”

Julian D.M. Lew, QC (20 Essex Street Chambers) has posted a new article on SSRN entitled: Iura Novit Curia and Due Process, Liber Amicorum for Serge Lazareff, Forthcoming /Queen Mary School of Law Legal Studies Research Paper No. 72/2010.

Here’s the abstract:

 

A recent survey of 817 international commercial arbitrations revealed that ninety one different laws or systems where applicable in those cases. The choice of applicable law is of great importance in international arbitration but in most cases the question of “which law applies?” is resolved by the parties express choice of law. By contrast the process by which the arbitrator ascertains sufficient knowledge of the content of that applicable law is rarely considered. This article explains the different ways in which an arbitrator may learn the rules of law that it must apply to the specific issues that arise before the Tribunal. Approaches to this issue differ in national courts both within common law and within civil law legal systems, with some adopting the principle of iure novit curia – the court knows the law – and others relying on the parties to plead and prove the law to the court. In international arbitration there is no uniform practice applied to this issue. This paper suggests that in international arbitration neither approach to the content of laws question prevails. Subject to due process requirements and in absence of agreement of the parties, arbitrators are free to develop procedures appropriate to the needs of the specific arbitration.

2 Responses to “Julian D.M. Lew, Q.C. on “Iura Novit Curia and Due Process””

  1. Ted Folkman Says:

    Many lawyers, at least in the US, would probably share my sense that in cases where a foreign law applies, a judge’s subconscious bias often is to understand the foreign law through the lens of the law of the forum. In international arbitration, something similar might happen. But I wouldn’t expect the law of the forum to be the dominant bias, since the seat of the arbitration is often not the same as the arbitrators’ nationalities.

    Thanks for the heads-up about the paper.

  2. Antonin I. Pribetic Says:

    You’re welcome. Thanks for your comment. In Canada, foreign law must be pleaded and proven by expert evidence. This is costly and time-consuming, but usually factors in jurisdictional motions. Also, the CISG is regularly missed altogether, or Canadian judges mistakenly presume that domestic sales jurisprudence applies, mutatis mutandis, despite Article 7 of the CISG interpretive methodology and what the late Professor Al Kritzer and Vikki Rogers referred to as a “global jurisconsultorium”. As far as international arbitration is concerned, most arbitrators will be atuned to confirmation bias in resorting to the law of the arbitral seat, especially if the parties have a choice of law clause that governs the dispute.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: