The Law Applicable to International Commercial Contracts Before Arbitration Tribunals – A Study of the Limits of Party Freedom and Public Order

Abstract

The choice of the law applicable to international commercial contracts before arbitral tribunals presents two issues: the scope of the parties' freedom to adopt the law that applies to the contractual relationship and the scope of the mandatory rules, public policy and the arbitral tribunal's power if there is no valid choice. In Iraq, Article 25(1) of the Civil Code No. 40 of 1951 provides for the parties' will as a subsidiary of the connecting factors, while the rules of domestic arbitration are set forth in Articles 251–276 of the Civil Procedure Law No. 83 of 1969. Iraq was also a party to the 1958 NY Convention on 9 February 2022. Express and implied choice of law, dépeçage, non-State rules, overriding mandatory provisions, public policy, authority of the tribunal when there is no choice of law and judicial review at recognition and enforcement stage are analysed. It uses an analytical and comparative approach focused on Iraqi law and Iraqi case law, taking into account the UNCITRAL Model Law, the ICC Arbitration Rules of 2026, the Rome I Regulation and the UNIDROIT Principles. The study concludes that effective arbitration must be accompanied by a wide acceptance of party autonomy, but party autonomy is not the justification for avoiding the overriding rules which safeguard basic public interests, nor is public policy supposed to be a means for an exhaustive merits review of an arbitral award.