In this Congress which is concerned with international commercial arbitration, “the law applicable in international arbitration” is understood to mean international commercial arbitration. Accordingly our topic is the application of public international law in international commercial arbitration. Such application is, particularly, to be found in arbitral proceedings between a State or State enterprise, on the one hand, and an alien private party on the other. At the same time, issues of international law can and do arise in international commercial arbitration proceedings between private parties. For example, questions such as whether a state of war exists – a quintessential issue of international law – arise in insurance litigation and arbitration.
In the State/alien arbitral context, three salient aspects of such application will be considered. The first is, may public international law be the lex arbitri? The second is, may public international law govern the substance of the dispute, or aspects of the substance of the dispute, which typically will be a dispute over contractual rights and performance? The third is, where international law has not been specified to be or found by the arbitral tribunal to be the proper law of the contract, may the alien nevertheless make claims against the State or State enterprise on the basis of public international law?