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.