1 The Law Applicable to Procedural Issues
Jeffery Commission, Rahim Moloo
- Precedent — Applicable law
This chapter examines the various sources of procedural law in investment arbitration and articulates a hierarchy among those sources. It first considers the procedural law selected by the parties to the arbitration, emphasizing the fact that some of the laws selected by the parties impose mandatory rules that cannot then be deviated from, while others are binding, unless the parties later decide on a separate course. It then explains how the appropriate governing rules can be determined when the rules selected by the parties are silent. In particular, it describes the arbitral tribunals' role to fill gaps in the rules and suggests that, in doing so, the tribunals and the parties rely on the context of the applicable procedural rules, certain soft law protocols, and prior arbitral practice for guidance.