Reflections on the Application of the Iura Novit Curia Principle in International Arbitration
Full-Time Arbitrator and Professor of International Commercial and Investment Arbitration.
I would like to share with you some reflections on the not always peaceful issue of the application of the Iura Novit Curia Principle in the field of International Arbitration.
First, it is interesting to note that the principle of iura novit curia – “the court knows the law” – which is specific to national legal systems and applicable to state judges, is already limited in its feasibility, since it is unlikely that a judge – for example, a Peruvian judge – really knows all national law. However, the adoption of this principle in the field of international arbitration, which could be referred to as Iura novit arbiter -“the arbitrator knows the law”-, exponentially multiplies this limitation, since the arbitrators would have to know a vast number of different national laws, and even those of different legal traditions -common law, civil law, Muslim law, etc-. In addition to the fact that several of these could be applicable to the same case, if the law governing the merits, the lex arbitri and the law governing the arbitration agreement are different. Fortunately, this disadvantage is mitigated to some extent by the fact that it is the parties who must initially determine the law applicable to the case.
Second, it might be appropriate to expressly regulate the principle of iura novit arbiter in arbitration laws, as is the case in the English Arbitration Act of 1996, which states in Section 34, paragraphs 1 and 2, letter g, that:
(1) It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.
(2) Procedural and evidential matters include (…) g) whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law”
It shall be the responsibility of the court to decide all procedural and evidentiary matters, except the right of the parties to settle any issue. Procedural and evidentiary matters include (…) (g) whether and to what extent the court should take the lead in determining the facts and the law.
Third, in order not to affect the procedural guarantees of the parties by using the principle of iura novit arbiter, it would be appropriate, for example, to follow the criteria set out by the International Law Association Recommendations on Ascertaining the Contents of the Applicable Law in International Commercial Arbitration (Resolution Number 6/2008). Points 10 and 11 state that:
“If arbitrators intend to rely on sources not invoked by the parties, they should bring those sources to the attention of the parties and invite their comments, at least if those sources go meaningfully beyond the sources the parties have already invoked and might significantly affect the outcome of the case. Arbitrators may rely on such additional sources without further notice to the parties if those sources merely corroborate or reinforce other sources already addressed by the parties (…) If in the course of deliberations arbitrators consider that further information about the contents of applicable law is necessary to the disposition of the case, they should consider reopening the proceedings to enable the parties to make further submissions on the open legal issues, but only to the extent necessary to address the open legal issues and taking into account considerations of relevance, time and cost”
If arbitrators intend to rely on sources not invoked by the parties, they should bring those sources to the attention of the parties and invite their comments, at least if those sources go beyond the sources already invoked by the parties and could significantly affect the outcome of the case. Arbitrators may rely on such additional sources without further notice to the parties if those sources merely corroborate or reinforce other sources already addressed by the parties. If, during the deliberations, the arbitrators consider that it is necessary to obtain further information on the content of the applicable law in order to resolve the case, they should consider reopening the proceedings to allow the parties to present new arguments on the open legal aspects, but only to the extent necessary to address those legal aspects and taking into account relevant considerations. time and cost.
Fourth, the principle of iura novit arbiter has a utilitarian function, which allows the arbitral tribunal to overcome, inter alia, the absence, weakness or imprecision of the legal rules alleged by the parties. This is particularly relevant if the rules referred to above are of public policy, since in that case they are applied as a matter of mandatory effect. If the arbitral tribunal were to disregard them, it would jeopardize the validity of the arbitral award, as well as its subsequent recognition and enforcement.