1.

'Must the definition of the international character of a given arbitration be sought in

the provisions of the lex arbitri or in those of the law of the contract?'
Ans: The definition of the international character of a given arbitration should be
sought primarily in the provisions of the lex arbitri rather than the law of the contract.
Here's why, based on the provided information:

1. **Role of the Arbitrator**: Unlike national judges, international commercial

arbitrators do not act in the name of any specific state. They do not have a "lex fori" (a
law of the forum state) that binds them to apply national conflict of laws rules.
Instead, they are subject to a "lex arbitri," which is the set of legal rules governing
international arbitration in the country where the arbitration is taking place.

2. **Applicability of Lex Arbitri**: When an arbitration is seated in a particular

country, the arbitrator must apply the legal rules governing international arbitration in
that country, which is the lex arbitri. For example, if an arbitrator is sitting in
Switzerland or France, they would apply the rules of international commercial
arbitration in force in Switzerland or France.

3. **Institutional Arbitration**: In many cases, parties choose to resolve their

disputes through institutional arbitration and agree to follow the rules of the chosen
institution. These institutional rules become an integral part of the lex arbitri and are
reflective of the parties' intentions. For instance, if parties agree to ICC arbitration, the
ICC Rules of Arbitration are applied.

4. **Party Autonomy**: The principle of party autonomy is central in international

arbitration. Parties are generally free to choose the applicable law within the
constraints provided by the institution's rules and the lex arbitri. If the parties have not
made a choice regarding the applicable law, the lex arbitri or institutional rules
provide guidance to the arbitrators.

5. **Suppletive Nature of Lex Arbitri**: Provisions of the lex arbitri are often
suppletive, meaning that they serve as a default framework that the parties or
arbitrators can amend or derogate from. This flexibility allows parties to organize
their arbitration as they see fit.
 In summary, the international character of arbitration and the determination of the law
applicable to the merits of the dispute are primarily governed by the lex arbitri, which
includes principles of party autonomy and allows parties and arbitrators to choose and
apply the applicable law within the framework of the lex arbitri and any institutional
rules agreed upon by the parties. The law of the contract is relevant but is subordinate
to the lex arbitri in international arbitration.
2. the arbitrators verify the international character of the contract before agreeing to
apply the choice of law made by the parties?
Ans: In international commercial arbitration, the arbitrators verify the international
character of the contract before agreeing to apply the choice of law made by the
parties. This verification is done to ensure that the contract and its related dispute have
the necessary international aspects, which would justify the use of international
commercial arbitration. Once the international character is established, the arbitrators
proceed to apply the choice of law made by the parties.

The basis for this process is the intention of the parties, which is often declared in the
contract or arbitration agreement. The UNCITRAL Model Law on International
Commercial Arbitration and other international conventions provide for the arbitral
tribunal to decide the dispute in accordance with the rules of law chosen by the parties
for the substance of the dispute. The arbitrators are required to give effect to the
parties' intentions.

The ways in which the arbitrators become aware of the parties' intention can include:
1. Choice of Law Clause in the Contract:The contract may contain a clause where
the parties have designated the applicable law. This is the most common way to
express their intention.

2. Arbitration Agreement: The parties can include an arbitration agreement in the

contract or agree to submit an existing dispute to arbitration. In this agreement, they
may specify the rules of law to be applied.
 3. Terms of Reference and Written Submissions: The parties may express their
intention regarding the applicable law through the Terms of Reference, which are
drafted by the arbitrators, or in their written submissions during the proceedings.
The arbitrators are required to interpret the parties' intention, which can sometimes be
complex or vague. The arbitrators must consider whether the choice of law is
explicitly stated or if it can be implied from the contract, the conduct of the parties, or
other factors.
Arbitrators may also have the power to act as amiable compositeurs, which allows
them to apply principles of equity if authorized by the parties. This means they can
depart from strict legal reasoning and modify contractual terms when equity demands
it.
In summary, the arbitrators' role is to give effect to the intention of the parties as
expressed in the contract or through other means. They must carefully consider the
choice of law and the international character of the contract before making a decision
on the applicable law. If the parties have authorized amiable composition, the
arbitrators may also consider principles of equity in their decision-making process.
3. Is there a risk for the parties in deciding that their contract will be submitted to the
law of a State, fixed as that law stood at a specific date?
Ans: The risk for the parties in deciding that their contract will be submitted to the
law of a State, fixed as that law stood at a specific date, can vary depending on the
specific circumstances and the clauses within the contract. Here are some key points
to consider:

1. Parties' Intention: The primary principle in international commercial arbitration is

to give effect to the intention of the parties. The parties often have the freedom to
choose the applicable law to govern their contract. The chosen law may be that of a
specific State at a particular date. However, it's essential to ensure that the intention is
clear and unambiguous in the contract.

2. Binding Nature of Party Autonomy: Once the parties have chosen the law that is to
govern their contract, arbitrators are generally bound to apply this chosen law. This
principle reflects the autonomy and freedom of the parties in their contractual
relationships.
 3. Implied Choice of Law: In some cases, the parties may not explicitly state their
choice of law in the contract. In such situations, arbitrators may have to interpret the
implied intention of the parties, which can be challenging. The arbitrator may need to
consider various factors, such as the nature of the contract, the place of performance,
and the conduct of the parties.

4. Amiable Composition and Equity: If the parties have authorized amiable

composition, it allows the arbitrator to deviate from strict legal reasoning if the
requirements of equity demand it. This power can be used to modify the contract and
ensure fairness. However, it's crucial for the arbitrator to balance this with the chosen
law and ensure that the result remains compatible with equity.

5. International Public Policy: Regardless of the chosen law or the application of

amiable composition, arbitrators must consider international public policy. If a
decision or award violates fundamental principles of justice, it may be subject to
challenge.

In conclusion, the risk for the parties in choosing a specific State's law at a fixed date
depends on the clarity of their intention, the presence of implied choices, the
application of amiable composition, and the need to align the outcome with
international public policy. While party autonomy is a fundamental principle, it must
be exercised with care and precision to avoid potential pitfalls in international
commercial arbitration.
4. Is there a difference between the selection of the law applicable to a contract and the
law applicable to a dispute?