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Practising VirtueInside International Arbitration$
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David D. Caron, Stephan W. Schill, Abby Cohen Smutny, and Epaminontas E. Triantafilou

Print publication date: 2015

Print ISBN-13: 9780198739807

Published to Oxford Scholarship Online: January 2016

DOI: 10.1093/acprof:oso/9780198739807.001.0001

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Should International Commercial Arbitrators Declare a Law Unconstitutional?

Should International Commercial Arbitrators Declare a Law Unconstitutional?

Chapter:
(p.308) 18 Should International Commercial Arbitrators Declare a Law Unconstitutional?
Source:
Practising Virtue
Author(s):

Horacio A Grigera Naón

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198739807.003.0019

This chapter examines the relationship of arbitral tribunals to domestic courts. Specifically, it asks whether arbitrators have the power to declare a law unconstitutional. It shows that this depends, inter alia, on the applicable lex arbitri. While some countries, such as Argentina, grant arbitrators such wide-ranging powers and others, such as the United States, are more restrictive. Thus, a key consideration for arbitral tribunals in deciding this question is the idea of comity, that is, whether it is ‘proper and prudent’ for arbitrators to reject the effects of a law, even though it has not been declared unconstitutional within the domestic legal order by the constitutional or other competent court.

Keywords:   international arbitration, arbitrators, arbitral tribunals, domestic courts, national courts, comity

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