Originally from European International Arbitration Review

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I.  Introduction 

Over time, there have been competing paradigms as to which private international law rules should govern the choice of the law applicable to the merits in international arbitration proceedings.1 In the mid-20th century the prevailing approach was still to consider arbitral tribunals as being bound by the rules of conflict applicable in the legal order of the seat. However, this seat theory could not persist. Instead, separate choice-of-law provisions that are not a priori linked to the rules of conflict applicable in the legal order of the seat were created (see I.). Since then, this autonomous framework to determine the applicable law has proven to be a flexible instrument that is suitable for the needs of the business community in international arbitration proceedings (see II.).   

Within the European Union, this regime has recently been put into question.2 A number of commentators and scholars argue that international arbitral tribunals seated in the European Union are bound by Regulation (EC) No 593/2009 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (the “Rome I Regulation”) as well as by Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (the “Rome II Regulation”).3