Abstract:
This article explores the differences between two approaches to determining choice of law issues that arise in international arbitration: voie directe and voie indirecte. The former, also known as the “direct application” method, involves the tribunal determining choice of law issues by directly applying a particular law or rules of law. The latter involves the tribunal determining the choice of law rules to apply to the dispute, and then determining the applicable law or rules of law by the application of the choice of law rules. Both methods are commonly used in institutional rules and national arbitration law. This article seeks to examine the extent to which the two approaches converge in practice, and considers the potential obfuscation of the tribunal’s and the party’s true objectives involved in the voie indirecte method, compared to the uncertainty that can result in an application of the voie directe approach.