Lex loci arbitri
The
lex loci arbitri is the
Latin term for "law of the place where
arbitration is to take place" in the
Conflict of Laws. Conflict is the branch of
public law regulating all
lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
When a case comes before a
court and all the main features of the case are local, the court will apply the
lex fori, the prevailing municipal
law, to decide the case. But if there are "foreign" elements to the case, the forum court may be obliged under the Conflict of Laws system to consider:
*whether the forum court has
jurisdiction to hear the case (see the problem of
forum shopping);
*it must then
characterise the issues, i.e. allocate the factual basis of the case to its relevant legal classes; and
*then apply the
choice of law rules to decide which law is to be applied to each class.The
lex loci arbitri is an element in the choice of law rules applied to cases testing the validity of a
contract. As an aspect of the
public policy of
freedom of contract, the
parties to an agreement are free to include a
forum selection clause and/or a
choice of law clause and, unless there is a lack of
bona fides, these clauses will be considered valid. If there is no express selection of a
proper law, the courts will usually take the nomination of a forum as a "connecting factor", i.e. a fact that links a case to a specific georgraphical location. For these purposes, one of the "forums" that may be selected is arbitration. Hence, the fact that the parties have chosen a
state as the place of arbitration is an indication that parties may have intended the local law to apply. This indication will be weighed alongside other connecting factors. The state that has the largest number of connecting factors will be the
lex causae applied to resolve the dispute between the parties. If there is a tie, the connecting factors which relate to performance will be given a greater weighting.
*
Lex domicilii*
Lex loci celebrationis*
Lex loci contractus*
Lex loci delicti commissi*
Lex loci solutionis*
Lex patriae*
Lex situs
