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Extinctive Prescription and Applicable Law in Interstate Arbitration
By Kaj Hobér
This thesis deals with the resolution of international disputes through arbitration. It is devoted to one important aspect of interstate arbitration, viz., the law and/or rules to be applied. After an introductory account of the history and development of interstate arbitration, the emphasis is first put on party autonomy in the selection of the applicable law. In addition to party autonomy in interstate arbitration, choice of law by parties in international commercial arbitration (between private parties), is discussed. The conclusion is that party autonomy is fully accepted in interstate arbitration, albeit that there are certain restrictions on it. Such restrictions are discussed both with respect to interstate arbitration and international commercial arbitration. It is suggested that the only restriction on party autonomy in interstate arbitration is ius cogens.
The attention is then turned to the more difficult situation concerning applicable law, viz., when no choice of law has been made by the parties. With a view to studying this situation in detail, the thesis concentrates on the principle of extinctive prescription in international law. A fresh look is taken at this principle, in particular against the background of the traditionally suggested rule in interstate disputes to the effect that an arbitral tribunal should apply public international law, unless the parties have made a choice of law.
Based on an analysis of the current understanding and application of the principle of extinctive prescription, it is suggested that the principle is in need of refinement. Proceeding from a differentiation between different categories of interstate disputes, it is further suggested that the need for refinement of the principle is the greatest with respect to economic and commercial disputes. The method suggested for the refinement of the principle of extinctive prescription is to resort to municipal law rules on limitation.
Skrifter Frĺn Jurdidiska Fakulteten i Uppsala, No. 88