The Choice of National Law in International Arbitration

national law

A decision regarding the choice of national law in international arbitration depends on whether the parties have agreed on it in their agreement. Some agreements may specify that national law should govern the proceedings, while others do not. In cases like this, the arbitrator should apply national law rather than international law. The arbitrator should follow the rules of the chosen country’s law, but there are exceptions. Listed below are some exceptions. The parties should carefully review these exceptions and their implications.

In international law, the principle of monism was first established by Kelsen, who wrote the famous “Let nations act according to their customs” and “Let nations act as they see fit”. In the early nineteenth century, the naturalist and positivist schools were joined by the Swiss jurist Emerich de Vattel. The positivist tradition gained wider acceptance in the 18th century, and the concept of natural rights remained prominent in international politics and the republican revolution. Nevertheless, in the 20th century, natural rights have gained more salience.

The Kosovo Constitution establishes the supremacy of the constitution over ratified treaties. The constitution is the highest law of Kosovo, so any national law must be in accordance with it. Ratified treaties will directly be incorporated into Kosovo national law. The incorporation of a treaty into national law should be contested or barred if it is in violation of Kosovo’s constitution. This demonstrates the need for control over treaties’ constitutionality.

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