"It won’t always be clear which country’s law will govern the dispute."

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 widely recognised and will be published by Oxford University Press as part of its Oxford Private International Law Series, in a new book titled Conflict of Laws and Arbitral Discretion: The Closest Connection Test. 

Dr Hayward explains that while his research may sound technical, it is an area of great importance. 

'Research conducted at the School of International Arbitration at Queen Mary University of London demonstrates that international commercial arbitration is considered a preferred means of settling international business disputes, with parties to those disputes often keen to avoid resorting to the national courts of the other party to their business deal,' he says. 

Where international transactions break down, however, it won’t always be clear which country’s law will govern the dispute.  Dr Hayward explains that where the 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.

'Sometimes, when arbitrators choose to apply the law of one or the other contracting party, their choice can directly affect the outcome of the dispute. 

'For example, some legal systems may be strict about enforcing contract clauses that provide for a specific monetary sum being paid on a breach of contract; while other legal systems might more readily enforce those kinds of clauses.' 

Arbitration seeks to adopt a procedure that is useful to parties in business disputes, and that meets their commercial needs.  Dr Hayward’s research makes law reform recommendations around how arbitrators go about the process of selecting which law to apply, and in doing so, seeks to improve arbitration’s procedure from the perspective of the businesses that use arbitration to resolve their disputes.

Dr Hayward’s book will be published in January 2017, and can be pre-ordered on the Oxford University Press website.