انعكاسات مبدأي الصحة و الاستقلالية بشأن القانون الواجب التطبيق على اتفاق التحكيم

Abstract EN

It may be thought that international arbitration has reached its peak of prosperity, and independence of its rules.

However, today’s arbitration is not yesterday’s.

There is always an ongoing movement of evolution, which can be seen clearly in the arbitration agreement.

The latter is no longer merely a contract agreement subjected to the rules and provisions governing contracts.

It is also no longer a procedure whose validity is subject to the law of the litigation state, but rather has become an agreement that has its own autonomy and independence, and its validity is guaranteed.

The arbitration agreement is the engine of the arbitration process, without which the arbitrators would not have appointed themselves as judges resolving the issue of the dispute.

Whatever means of concluding this agreement, simply verifying its legal existence is sufficient to contract jurisdiction for the arbitral tribunal not only with regard to the subject matter of the dispute, but also to the allegations of their lack of jurisdiction.

National laws and international agreements, as well as judicial rulings, customs and norms of international trade, have enshrined the principle of the independence of the arbitration agreement.

Independence has represented a new concept and dimension, giving the arbitration system a ground superior to what occupied before.

The reason for this lies in the principle of the validity of this agreement away from any national law.

The matter which leaves out the possibility of interfering with the rules of conflict, or with the rules of the law chosen.

Accordingly, the arbitrator has the authority to decide on his jurisdiction and on the matter alike.