Deakin Law School lecturer Dr. Benjamin Hayward completed his PhD on conflicts of laws in international commercial arbitration in 2015. His research has now been published by Oxford University Press in the Oxford Private International Law Series, in a newly published book Conflict of Laws and Arbitral Discretion – The Closest Connection Test.
Dr. Hayward’s research interests focus on private international law, international commercial arbitration, and the international sale of goods – all of which are addressed in his book. Though the areas sound difficult and technical – and they are – they are of great importance to legal practice and also to commercial parties.
‘Parties to cross-border contracts often choose arbitration as a means to settle their business disputes’ Dr. Hayward explains. ‘Research conducted at the School of International Arbitration at Queen Mary University of London confirms that international commercial arbitration is a preferred means of dispute resolution. Rather than parties resorting to unfamiliar national court systems, which involves uncertainty and business risk, parties often choose to arbitrate their disputes in a neutral country, before an arbitral tribunal comprised of one or three arbitrators, who can be chosen by the parties themselves, and who may have expertise directly relevant to the dispute.’
Where these international transactions break down, it won’t always be clear which country’s law governs the parties’ dispute – and this is where Dr. Hayward’s research steps in. Dr. Hayward explains that where parties to an international contract don’t have a clause in their contract choosing what law is to apply, the arbitrators have to make that decision instead.
‘Arbitration is a more commercially-focused way to resolve business disputes, but it still involves arbitrators applying the law. Sometimes, when arbitrators choose to apply the law of one country rather than another, that choice directly affects the outcome of the dispute. For example, some countries may be relatively strict about refusing to enforce contractual clauses that provide for specific monetary penalties for a breach of contract; other legal systems might more readily enforce those kinds of clauses.’
Arbitration seeks to embody a dispute resolution procedure that is useful to parties in resolving their business disputes, and one that meets their commercial needs. Dr. Hayward’s research makes law reform recommendations around the processes used by arbitrators in identifying which law to apply, amongst alternative bodies of law that might differ. In doing so, his book seeks to improve this aspect of arbitral procedure from the perspective of business needs. A clearer understanding of the applicable law helps businesses understand their rights and obligations in an arbitration, but also helps them to properly perform their contractual obligations in the first place – as well as assisting in the conduct of settlement negotiations, and in the fulfilment of due process rights in arbitration.