Iura Novit Arbiter Revisited: Towards a Harmonized Approach? – University of Copenhagen

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10 June 2015

Iura Novit Arbiter Revisited: Towards a Harmonized Approach?

New article by Joanna Jemielniak and Stefanie Pfisterer has been published in Uniform Law Review 2015/20(1).

The principle of iura novit curia, having a long tradition as well as being well established in modern-day domestic litigation in a variety of jurisdictions, does not enjoy an equally clarified status in international commercial arbitration. The issue of its applicability and scope in arbitration, however, is of the utmost practical importance, as it directly affects the procedural positions of the parties as well as the status of an arbitrator and the scope of his or her rights and duties. At the same time, the traditionally offered rationales for the presence of this principle in national legal orders do not necessarily remain valid in the context of arbitration.

The analysis of iura novit curia in arbitration thus calls for a carefully calibrated study, taking into account these reservations and the specific character of arbitral decision making. One of the key findings of the article is the discovery of a relatively coordinated practice of application of the discussed principle in different arbitral jurisdictions, despite divergences between the existing national approaches in this regard. In particular, the oftentimes raised differences between the common law and the civil law traditions on this issue have turned out not to be among the decisive factors in the formulation of the scope and limits of application of iura novit curia in the practice of arbitral tribunals. In spite of diversified regulatory regimes and jurisprudence, it can thus be argued that a transnationalized, hybrid practice in this area is emerging.

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