Professor Franco Ferrari, the Director of NYU School of Law’s Center for Transnational Litigation, Arbitration, and Commercial Law has just published a paper in French on the importance of the law of the seat in the peer-reviewed Revue de droit international et de droit comparé (L’importance du siège de l’arbitrage, Revue de droit international et de droit comparé (2024) 225-251). In the paper, Professor Ferrari shows, as he did in a series of other papers (including in his paper Plures leges faciunt arbitrum, 37 Arbitration International (2021) 579-597), that in international arbitration the lex loci arbitri has not lost its importance, which is not to say that it operates as the exclusive source of the arbitral process. In Professor Ferrari’s view, it is the law of the seat that primarily furnishes arbitration its regulatory norms, in the form of ground rules in accordance with which any arbitration may take place at the arbitral seat. But he also shows that the law of the seat is not the only law imposing itself upon an international arbitration. In other words, the regulatory sovereignty of the state of the seat of arbitration is not necessarily the only one to be triggered during the different stages of an arbitration’s life-cycle. This is due to the fact that this regulatory sovereignty encounters both subject-matter limitations and territorial limitations, and, therefore, depending on what matter is to be addressed – and when and by whom – may call into play the regulatory sovereignty of States other than that of the seat.
