Substantive law, lex mercatoria and soft law as the foundations of international commercial arbitration: Is it an isosceles, scalene or equilateral triangle?

Abstract

The paper examines the various interactions between substantive law, lex mercatoria and soft law when determining the applicable law governing the merits of a dispute in international commercial arbitration. It highlights that the modernisation of uniform law in the field of arbitration affords greater scope for action to the arbitrator, who must carefully weigh up the election of the instrument to apply by conducting a technical analysis of the law using the relevant tools and criteria, including comparative law, and always within the limits of the parties’ autonomy, the applicable instruments and the properly technical-legal standards.