ABSTRACT
This chapter completes the second part of the book: understanding the agency that the parties have, to choose non-state rules and understanding how non-state rules can be applied as a choice of law. This current chapter focuses on arbitration. It is divided in two parts: the first analyses several national arbitration laws and arbitration rules to understand whether these allow for non-state rules as a choice of law. It also focuses on whether tribunals can select non-state rules in the absence of a choice of law clause. The evidence suggests that parties are usually allowed to choose non-state rules as the applicable law, and that in most cases it is also possible for arbitral tribunals to apply non-state rules when the parties have not made a choice of law. The second part focuses on the challenges/enforcement of arbitral awards based on non-state rules in state courts. Studying this application helps create a better understanding of the legal authority of non-state rules as they give insight in the reasoning of the courts and parties on the issue. Overall, in arbitration the parties and the tribunal have significant agency to use non-state rules.
