CONFLICT OF LAWS IN ARBITRATION

TING HIE CHING

UNIVERSITI TEKNOLOGI MALAYSIA

CONFLICT OF LAWS IN ARBITRATION

TING HIE CHING

A thesis submitted in fulfillment of the

requirements for the award of the degree of

Master of Construction Contract Management

Faculty of Built Environment

Universiti Teknologi Malaysia

SEPTEMBER 2012

iii

DEDICATION

Special thanks to my parents, my sister, my brothers and friends for their help and

understanding

Thanks for Everything….

iv

ACKNOWLEDGEMENT

I would like to take this opportunity to record my sincere appreciation to

those who has been helping me throughout the research. The research would not

have been successful without the great support, sacrifice and generous contributions

from various parties.

First of all, I would like to thank my supervisor, Dr. Nur Emma Binti

Mustaffa for her guidance, encouragement, concerns, advice and support in order to

complete this dissertation.

Not forgetting my dearest parents, sister and brothers, a token of appreciation

goes to them for all the support given. Lastly, I would like to thank all my friends

for their support and dedication in helping me to complete this research. Thank you

very much.

v

ABSTRACT

Generally, arbitration is preferred as an effective method of settling disputes

between the parties which are from different countries. Conflict of laws is a part of

English law that we will use whenever we face a legal problem which has a foreign

element in it. Conflict of laws is defined as a conflict between the laws of two or

more states or countries that would apply to a legal action in which the underlying

disputes, transaction or event affects or has a connection to those jurisdictions. This

research is on conflict of laws in arbitration. The objective of this study is to

determine the grounds to solve conflict of laws in arbitration. This study covers the

legal cases in England which are related to conflict of laws in arbitration. The

methodology of this study has been based on documentary analysis. The research

findings show that the grounds to solve the conflict of laws in arbitration are

jurisdiction, choice of law and enforcement and recognition of foreign judgment.

The court must have jurisdiction to settle the dispute as provided in the agreement

signed between both parties. When there was an express or implied choice of law in

arbitration, the parties would apply the law as expressed in the agreement. However,

in the absence of express or implied choice of law, the parties would apply English

conflict of laws rules to determine the dispute. The English court would recognize

and enforce the foreign judgment if the judgment was final and conclusive.

vi

ABSTRAK

Secara umumnya, timbang tara adalah kaedah yang lebih berkesan untuk

menyelesaikan pertikaian antara pihak-pihak dari negara-negara yang berbeza.

Konflik undang-undang adalah sebahagian daripada undang-undang Inggeris yang

akan kita gunakan apabila kita berhadapan dengan masalah undang-undang yang

mempunyai unsur asing. Konflik undang-undang yang ditakrifkan sebagai konflik

antara undang-undang dua negeri atau lebih atau negara-negara yang akan dikenakan

tindakan undang-undang di mana pertikaian yang mendasari, urusniaga atau

peristiwa yang menjejaskan atau mempunyai hubungan kepada bidang kuasa mereka.

Kajian ini adalah mengenai kes konflik undang-undang di dalam timbang tara.

Objektif kajian ini adalah untuk menentukan alasan untuk menyelesaikan konflik

undang-undang di dalam timbang tara. Kajian ini meliputi kes-kes undang-undang

di England dan kes-kes yang berkaitan dengan konflik undang-undang di dalam

timbang tara. Metodologi kajian ini adalah berdasarkan analisis dokumentari.

Dapatan kajian mendapati bahawa alasan untuk menyelesaikan konflik undang-

undang di dalam timbang tara adalah bidang kuasa, pilihan undang-undang dan

penguatkuasaan dan pengiktirafan penghakiman asing. Mahkamah mesti

mempunyai bidang kuasa untuk menyelesaikan pertikaian itu sebagaimana yang

diperuntukkan dalam perjanjian yang ditandatangani antara kedua-dua pihak.

Apabila terdapat pilihan nyata atau tersirat undang-undang di dalam timbang tara,

pihak-pihak akan menggunakan undang-undang seperti yang dinyatakan dalam

perjanjian itu. Walaubagaimanapun, jika tiada pilihan nyata atau tersirat undang-

undang, pihak-pihak akan menggunakan peraturan konflik undang-undang Inggeris

untuk menentukan pertikaian itu. Mahkamah Inggeris akan mengiktiraf dan

menguatkuasakan penghakiman asing jika penghakiman itu adalah muktamad dan

konklusif.

vii

TABLE OF CONTENTS

CHAPTER TITLE PAGE

DECLARATION

TITLE PAGE i

DECLARATION ii

DEDICATION iii

ACKNOWLEDGEMENT iv

ABSTRACT v

ABSTRAK vi

TABLE OF CONTENTS vii

LIST OF CASES xi

LIST OF TABLES xiii

LIST OF FIGURES xiv

LIST OF ABBREVIATIONS xv

1 INTRODUCTION

1.1 Background of Study 1

1.2 Problem Statement 6

1.3 Objective of the Study 9

1.4 Scope of the Study 9

1.5 Significance of the Study 10

1.6 Research Methodology 10

viii

1.6.1 Stage 1: Initial Study 10

1.6.2 Stage 2: Literature Review 11

1.6.3 Stage 3: Data Collection 11

1.6.4 Stage 4: Data Analysis and Interpretation 12

1.6.5 Stage 5: Writing-up and Completion 12

2 CONFLICT OF LAWS IN ARBITRATION

2.1 Introduction 14

2.2 Jurisdiction 16

2.2.1 Subject Matter of Jurisdiction 18

2.2.2 Personal Jurisdiction 18

2.3 Choice of Laws 19

2.3.1 Express or Implied Choice of Law 22

2.3.2 No Applicable Law Being Chosen 25

2.3.2.1 Conflict of Laws Rules 26

2.3.2.2 Choice of Substantive Law 27

2.3.3 The Law of the Seat of the Arbitration 28

2.3.4 Law Applicable to Arbitration Agreement 30

2.3.5 The Lex Causae: The Law Applicable to the 30

Substance of the Dispute

2.3.6 The Law Applicable to the Enforcement of Award 31

2.4 Foreign Judgments and Arbitral Awards 31

2.4.1 Recognition and Enforcement of Foreign Judgments 31

2.4.2 Jurisdiction of the Foreign Court 34

2.4.3 Arbitral Awards 35

2.4.3.1 Validity of the Agreement to Arbitrate 38

2.4.3.2 The Law Governing the Arbitration 39

Proceedings

2.4.3.3 Validity of the Award 41

2.4.3.4 Finality of the Award 41

2.4.3.5 Mode of Enforcement 42

2.5 Conclusion 43

ix

3 RESEARCH METHODOLOGY

3.1 Introduction 45

3.2 Stage 1: Initial Study 46

3.3 Stage 2: Literature Review 46

3.4 Stage 3: Data Collection 47

3.5 Stage 4: Data Analysis and Interpretation 48

3.6 Stage 5: Writing-up and Completion 49

3.7 Conclusion 50

4 GROUNDS TO SOLVE CONFLICT OF LAWS IN ARBITRATION

4.1 Introduction 51

4.2 Summary of Law Cases 52

4.2.1 Hamlyn & Co v Talisker Distillery 52

4.2.2 James Miller & Partners Ltd v Whitworth Street 53

Estates (Manchester) Ltd

4.2.3 Musawi v R E International (UK) Ltd and Others 53

4.2.4 Tamil Nadu Electricity Board v ST-CMS Electric 54

Company Private Ltd

4.2.5 Compagnie d‟Armement Maritime SA v 55

Compagnie Tunisienne de Navigation SA

4.2.6 Tzortzis and Another v Monark Line, A/B 55

4.2.7 International Tank and Pipe SAK v Kuwait 56

Aviation Fuelling Co KSC

4.2.8 Shashoua and Others v Sharma 57

4.2.9 Sulamerica Cia Nacional de Seguros S.A. and 57

Others v Enesa

4.2.10 Tracomin SA v Sudan Oil Seeds Co Ltd 58

4.3 Analysis of Law Cases 59

4.3.1 Hamlyn & Co v Talisker Distillery 59

x

4.3.2 James Miller & Partners Ltd v Whitworth Street 62

Estates (Manchester) Ltd

4.3.3 Musawi v R E International (UK) Ltd and 66

Others

4.3.4 Tamil Nadu Electricity Board v ST-CMS Electric 69

Company Private Ltd

4.3.5 Compagnie d‟Armement Maritime SA v 72

Compagnie Tunisienne de Navigation SA

4.3.6 Tzortzis and Another v Monark Line, A/B 78

4.3.7 International Tank and Pipe SAK v Kuwait 82

Aviation Fuelling Co KSC

4.3.8 Shashoua and Others v Sharma 86

4.3.9 Sulamerica Cia Nacional de Seguros S.A. and 90

Others v Enesa Engenharia S.A. and Others

4.3.10 Tracomin SA v Sudan Oil Seeds Co Ltd 94

4.4 Comparative Analysis 97

4.4.1 Law Applicable to the Contract 97

4.4.2 Law Applicable to the Arbitration 98

4.5 Summary of Research Findings 101

4.6 Conclusion 104

5 CONCLUSION AND RECOMMENDATION

5.1 Introduction 105

5.2 Problem Encountered During Research 105

5.3 Conclusion of the Study 106

5.4 Suggestions for Further Research 107

REFERENCES 108

APPENDIX A – SEMINAR PAPER 110

xi

LIST OF CASES

Channel Tunnel Group v Balfour Beatty [1993] 1 All ER 664

Compagnie d‟ Armenment Maritime SA v Compagnie Tunisienne de Navigation SA

[1971] AC 572

Cookneyv Anderson (1863) 32 LJ Ch 427

Emanuel v Symon [1908] 1 KB 302

Halpern v Halpern [2007] EWCA Civ 291

Hamlyn v Talisker Distillery [1984] AC 202

International Tank and Pipe SAK v Kuwait Aviation Fuelling Co KSC [1975] 1 All

ER 242

James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970]

AC 583

Kwik Hoo Tong v James Findlay and Co [1927] AC 604

Musawi v R E International (UK) Ltd and Others [2007] All ER (D) 222

Naviera Amazonica Peruana SA v Compania International De Seguros del Peru

[1988] 1 Lloyd‟s Rep. 116

Scherk v Alverto-Culver Company 417 U.S. 506

Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd [2004] 1 WLR 1784

Shashoua and Others v Sharma [2009] EWHC 957

Spurrier v La Cloche [1902] AC 446

Sulamerica Cia Nacional de Seguros S.A. and Others v Enesa Engenharia S.A. and

Others [2012] EWCA Civ 638

Sumitomo Heavy Industries Ltd v ONGC Ltd (India) [1988 (1) SCC 305]

Tamil Nadu Electricity Board v ST-CMS Electric Company Private Ltd [2007] 2 All

ER (Comm) 701

Texaco v Libya (1977) 53 ILR 389

Tracomin SA v Sudan Oil Seeds Co Ltd [1983] 3 All ER 137

Tzortzis and Another v Monarch Line A/B [1968] 1 All ER 949

xii

Union Nationale des Cooperatives Agricoles v Catterall [1959] 2QB 44

Vita Foods Products v Unus Shipping Co Ltd (in liquidation) [1939] 1 All ER 513

xiii

LIST OF TABLES

TABLE NO. TITLE PAGE

1.1 List of Cases 48

4.1 Summary of Research Findings 101,102,103

xiv

LIST OF FIGURES

FIGURE NO. TITLE PAGE

1.1 Research Methodology 13

xv

LIST OF ABBREVIATION

ABBREVIATION FULL NAME

AC - Law Reports Appeal Cases

All ER - All England Laws Reports

EWHC - High Court of England and Wales

RIBA - Royal Institute of British Architects

UTM - Universiti Teknologi Malaysia

CHAPTER 1

INTRODUCTION

1.1 Background of Study

Arbitration as a dispute resolution method is unique in various ways. It has a

long history and it seems to resist any definition in modern legislations. It stands

above other kinds of dispute resolution process since there is statute regulating it in

most countries and is the preferable method of resolving international commercial

disputes compared to other methods.1

Besides that, arbitration is preferable as an effective method to settle conflicts

between the parties which are from different countries. The parties are always

refusing to seek solution for conflicts in the law courts because legal procedure is

complex, expensive and takes long time. Furthermore, arbitration was flexible,

which is being refused in traditional judicial settlement.2 When the conflicts are

likely to involve complex technical issues which will be beyond the ready

1 Oon Chee Kheng. (2004). Drafting Effective Dispute Resolution Clauses: Some Considerations.

Lawasia Business Law Conference. 2 Ali Khaled Qtaishat. (2007). Choice of Law in International Commercial Arbitration. India Law

Journal.

2

appreciation and comprehension of a non-professional person, arbitration will be

recommended to solve those disputes.3

Other than that, arbitration is basically an agreement to create „confidential

justice‟, for example privy tribunal would settle the private disputes. This is the

reason that it is usually accepted nowadays an arbitration agreements have an

intercrossed character, consisting both procedural and contractual basics.4

In general, arbitration is virtually an option. The parties can select whether to

arbitrate their disputes, who will be the decision makers, the place that arbitration

will be conducted and what procedures will be used. 5

Furthermore, arbitration is an important part of commercial life and every

legal system must have some degree connected with it.6 There is no legal necessity

for arbitration proceedings to be carried out at the place where one of the parties is

legally constituted. On the contrary, a neutral place is generally selected. Another

typical characteristic of arbitration is the a-national character of the arbitral tribunal:

the nationality and place of residence of the arbitrators are normally independent of

the place of the arbitration, unless the parties have expressly decided otherwise.7

However, international arbitration proceedings are not totally removed from

national legal systems. The most important connection is the seat of the arbitral

proceedings, since the law applicable at such place often contains provisions

permitting state courts there to revise the procedure and the arbitral award if so

requested by one of the parties. Some national laws contain specific rules for

3 Ibid, No. 1

4 Albert Jan van de Berg. (2006). Re-examining the Arbitration Agreement: Applicable Law-

Consensus or Confusion? ICCA Congress Series. 5 Cindy G. Buys. (2005). The Arbitrators‟ Duty to Respect the Parties‟ Choice of Law in Commercial

Arbitration. St. John‟s Law Review. Vol. 79 (Issue. 1), Article 3. 6 WSW Davidson, Sundra Rajoo. (2006). Arbitration Act 2005: Malaysia Joins the Model Law. The

Malaysian Bar. 7 E. Schafer, H. Verbist, C. Imhoos. (2005). ICC Arbitration in Practice. Kluwer Law International.

3

international arbitration proceedings different from those governing purely domestic

arbitration. This should be checked in each case. The seat of the arbitral

proceedings is also relevant as national arbitration laws. It often handles the

acknowledgement and enforcement of arbitral awards differently depending on

whether they are local or foreign. A foreign award is any award that is not provided

within the state where it is to be enforced. 8

Arbitration is basically a creature of contract although it has some public law

components. Arbitration was existed for the agreement of the parties to present some

conflicts to the arbitrators for settlement. Arbitration agreement makes an arbitrator

have power to discover and decide disputes with limitation.9

International Commercial Arbitration (ICA) is the process whereby parties

from different countries appoint a person to act judicially and finally settle a given

dispute that has arisen between them. The process is consent based and there will be

no arbitration unless the parties agree in advance that they will solve any future

disputes by arbitration or they submit to arbitration after a dispute has arisen.10

Almost all cross-border contracts contain arbitration clauses, the normal way

of things being to specify a place where the arbitration will take place, the arbitrator

and the parties would comply a set of rules. The arbitration clause will usually be

placed near the regulating law clause of the contract where the parties agree the

system of law that will regulate the contract.11

In an ideal world, if the contract contains both a regulating law clause and an

arbitration clause, the law that being applied will be clear and the arbitrators will

8 Ibid, No. 7

9 Ibid, No. 5

10 S. Lutterll. (2009). An International to Conflict of Laws in International Commercial Arbitration.

Kluwer Law International. 11

Ibid

4

have little need to resort to conflicts of law rules. However, contracts are rarely

perfect and for this reason, arbitration clauses are often eleventh hour „afterthoughts‟,

instead of properly negotiated provisions of the contract. It is often become the job

of the arbitrators to define the clause, and this is where conflicts rules come into the

equation.12

When we are faced by a judicial trouble that has a foreign component,

conflict of laws will be use since it is a part of English law. Foreign elements have

many forms.13

The subject of conflict of laws or private international law handles

the cases that involving the operation of two or more systems of law. It must be

noticed from the beginning that conflict of laws rules do not by themselves provide

any substantive rules for the solution of a problem. The purpose of the conflict of

laws rules is only to indicate or point the way to the appropriate legal systems for

solution.14

Conflict of laws defined as a conflict among the laws of two or more states or

countries that would enforce to an action at law in which the inherent conflict,

dealings or issue affects or has a link to those legal powers.15

Normally, conflicts are

being divided into three components, which are jurisdiction, choice of law and

judgments. 16

Consequently new philosophy and case law are presently referring to

general conflict of laws rules to be the proper reference to decide the law to be

applied relating to contractual relationships, whether of a privy law character or

qualified as public contracts.17

12

Ibid 13

M. Freeman. (2010). Conflict of Laws. University of London. 14

Rh Kickling & Wu Min Aun. (1995). Conflict of Laws in Malaysia. Butterworths. p.17 15

Webster‟s New World Law Dictionary 2010. Retrieved on March 20, 2012, from

http://law.yourdictionary.com/ 16

William M. Richman. (2003). Understanding Conflict of Laws. LexisNexis. 17

A. F. M. Maniruzzaman. (1993). International Commercial Arbitration: The Conflict of Laws Issues

in Determining the Applicable Substantive Law in the context of Investment Agreements. Cambridge

Journal. Netherlands International Law Review. Volume 40 (Issue 2).

5

The conflict of laws is related with all of the civil and commercial law. It is

not related with criminal, constitutional or administrative cases. It encompasses the

law of obligations, contract and tort, and the law of both immovable and movable

property, whether a question of title arises inter vivos or by way of succession. It

covers also the family law which including marriage, divorce, guardianship and the

relations of parent and child.18

The conflict of laws is an essential component of the law of every country

because different countries have different legal systems containing different legal

regulations. A contract may contain a clause about arbitration by which the parties

agree so as to if disputes arise under the contract they shall be decided by arbitration.

Parties may agree to present a specific dispute between them to the decision of a

particular arbitrator.19

Several complex conflicts of laws questions may develop in the context of

international arbitration. There appear to be rather fundamental differences of access

to the question of the powers and duties of arbitral tribunals as within common law

and civil law systems. It is especially when in differentiating between those matters

which are considered to be procedural and those considered to be substantive.20

In international arbitration, there automatically develops a conflict of laws

and the selection of the substantive law to be implemented in a dispute when the

parties are of different legal systems. Generally the substantive law to be

implemented in arbitration may be defined by the parties in their original agreement.

But problem develop in deciding the law to be applied when the parties

unsuccessfully to concur on the choice of law for the resolution of their disputes.21

18

J. G. Collier. (2001). Conflict of Laws. 3rd

Edition. Cambridge University Press. 19

J. D. McClean. (1993). Morris: The Conflict of Laws.4th

Edition. Sweet & Maxwell. p.1 20

Hunter, Martin & Triebel, Volker. (1989). Awarding Interest in International Arbitration. Retrieved

on March 18, 2012, from http://www.trans-lex.org/124400 21

Ibid, No. 2

6

Without an express agreement between the parties, an arbitral court will

normally enforce the conflict of laws rules where arbitration would be held to choose

the applicable law on any particular question. However, the rules of some arbitral

institutions intentionally provide the arbitral tribunal with a broad basis for this

choice.22

1.2 Problem Statement

The subjects of conflict of laws focus on conflicts and dealings that have

statutory significances affecting more than one monarch. Therefore, the conflicts

problems can demand questions that reach the deep relationships among the

governments. 23

Parties, especially foreign parties, are often reluctant to resolve their disputes

by an arbitration governed under the laws of a country with which they are

unfamiliar for the simple reason because they are uncertain as to how effective the

arbitration process would be. Further added to such uncertainty is the concern as to

judicial intervention, delays and cost implications. But surprisingly, there are also

concerns that the integrity of judicial systems in certain particular states may be in

question and therefore it may also affect the integrity of the arbitral system.24

In an agreement that includes an arbitration clause, there is a tendency that

the parties will select a law which they presume will give effect to the entire

22

Ibid, No. 20 23

Ibid, No. 16 24

Simon Greenberg, Christopher Kee, J, Romesh Weeramantry. (2011). International Commercial

Arbitration: An Asia-Pacific Perspective. Cambridge University Press.

7

agreement. These parties do not think in terms of substantive parts of the contract,

formal parts of the contract, the process and procedural parts of the contract. They

are most certainly will not be thinking in terms of conflict of laws separate between

substance, process and procedure.25

However the modern requirement and the existing legislated requirement are

for parties to consider separately the different elements within their contract. It is

used to differentiate the substantive contract from the process of arbitration and also

to differentiate the process of arbitration from the procedure of arbitration. It is used

also actually to consider the possibility of conflict between these particular areas or

within these particular areas.26

There is not just the question of the substantive law but there is also the

question of the law of the arbitration that will regulate the establishment of the

arbitration process, the rules or law on the process that the arbitral tribunal will be

applied and the law that is applicable when there is a conflict of laws. Choice of

procedural rules and choice of conflict of laws rule are also fundamentally choices of

laws.27

Any conflict of laws problem might develop in international commercial

cases from a theoretical perspective. Nevertheless, in practice, not all imaginable

conflict issues develop with any significant frequency and some infamous conflict of

laws hypothesis concerning an exchange of a conflict, procedural or substantive rule

barely develop in international commercial arbitration.28

25

Belden Premaraj. (2007). The Choices of Law – Better Safe Than Sorry. The Malaysian Arbitration

Perspective. Retrieved on March 25, 2012, from

http://www.beldenlex.com/pdf/The%20Choices%20of%20Law%20-

%20Better%20Safe%20Than%20Sorry.pdf 26

Ibid, No. 25 27

Ibid, No. 25 28

Filip De Ly. (2011). Conflicts of Law in International Arbitration. Retrieved March 22, 2012, from

http://www.sellier.de/pages/downloads/9783866531703_leseprobe.pdf?code=4a8fb234920bc290ddcb

75fd50df852a

8

Deciding the law to be applied in an international arbitration manner can be

very complex, yet seductively interesting from an academic perspective. It involves

an analysis of the interaction between different legal systems and their rules for

deciding the applicable law, usually referred to as „conflict of laws rules‟ or „private

international law rules‟. 29

The difficulties and complexities of the topic of private international law in

international commercial arbitration cover not only issues of applicable law but also

of international authority. Moreover, it also covers acknowledgement and

enforcement of judgments and arbitral awards. It stem from the fact that arbitrators

in international commercial cases are not only confronting a conflict of laws question

about which law applies. They also faced a conflicts of law question about which

system of private international law applies. 30

There is a potential conflict of laws when English law deals lawful questions

that have an international component. There are complicated matters, especially

because there are many distinct countries with diverse legal systems of rules. The

most important thing is when conflict of laws develops, the fundamental matters are

whose courts have authority, whose laws are to be employed, and can the judgment

be implemented?31

Regardless of the increasing harmonization of law at the multinational stage,

every arbitration brings up a number of conflicts of laws troubles concerning the

procedural questions besides the issues relating the merits of the case.32

29

Ibid, No. 24 30

Ibid, No. 28 31

Ibid, No. 13 32

Franco Ferrari, Stefan Kroll. (2011). Conflict of Laws in International Arbitration. Wildy and Sons

Ltd.

9

Unlike a state court judge, the arbitrator has no “lexi fori” in the common

sense furnishing that the relevant conflict rules to deciding the law to be applied.

This brings up the question of what conflict of laws rules to apply?33

Upon what ground should the rule of conflict to be used by an international

arbitrator be determined? Should it be the rule of conflict of the country from which

the arbitrator comes or is a national, or that of the country in which the arbitration

would be held or from which one or other of the parties comes?34

1.3 Objective of the Study

The objective of this research is to determine the grounds to solve conflict of

laws in arbitration.

1.4 Scope of the Study

The scope of the study is legal cases reported in Lexis Malaysia related to

conflict of laws in arbitration that involves England. The cases that are related to the

ground of solving conflict of laws in arbitration should be analysed.

33

Ibid, No. 33 34

Ibid, No. 7

10

1.5 Significance of the Study

This study is fundamentally anticipated to resolve some unsure issues that

develop in conflict of laws in international arbitration. In conformity to that, the

issues will be analyzed based on the explanation and decision by the courts. The

ground to solve conflict of laws should be analyzed and discussed in order that the

objective of this research can be achieved. It is hope that the outcomes of this study

will help to solve the conflict of laws in arbitration.

1.6 Research Methodology

The process and method of access function as a strategy to make sure this

research could be completed in an organized method to accomplish the objective of

this research. The study process consists of 5 stages, which involve initial study,

literature review, data collection, data analysis and interpretation and completion.

Below would be the five stages that being applied in doing this research.

1.6.1 Stage 1: Initial Study

The first stage of research involves initial study. Firstly, initial literature

review was being conducted sequentially to acquire the outline of the theory of

conflict of laws in arbitration. Discussions with supervisors, lecturers and friends

were conducted simultaneously in order that extra thoughts and information

concerning the topic could be composed. The rough idea for the topic of this

research was obtained after the initial study. Then, the objective and scope of this

11

research were identified. Next, a research proposal outline was arranged with the

purpose of discover what kind of data and sources would be required in this research.

1.6.2 Stage 2: Literature Review

This stage is literature review in which the research title is further explained

and discussed incorporating various types of data and information that are gathered

through books, articles, magazines, journals and newspapers. The data and

information about conflict of laws in arbitration should be gathered. This stage was

vital to support and strengthen the research before the research proceeded to other

stages.

1.6.3 Stage 3: Data Collection

Stage 3 involves the collection of related data and information. Data would

be collected primarily through documentary analysis and browsing through the Lexis

Malaysia database. All data and information that have been collected would be

recorded systematically. Relevant cases concerning the conflict of laws in arbitration

would be sort out from the database. Significant and relevant cases would be

collected for the purpose of case analysis on next stage.

12

1.6.4 Stage 4: Data Analysis and Interpretation

In this stage, all the collected data, information, ideas, opinions and

comments will be arranged, analysed and interpreted. This stage is to study and

transfer the data collected into information that is helpful for this research. The cases

of conflict of laws in arbitration will be analysed and interpret. The proper

arrangement of data tends to make the writing up process more efficient.

1.6.5 Stage 5: Writing-up and Completion

This is the final stage of the research process. It involves primarily the

writing up and checking of the written work. Lastly, conclusion and

recommendation would be made derived from the findings of the analysis of conflict

of laws cases in arbitration.

13

Stage 1

Stage 2

Stage 3

Stage 4

Stage 5

Figure 1.1: Research Methodology

Determine topic of this research

Determine research objective and scope

Identify types of data and sources needed – cases regarding

conflict of laws in arbitration are needed

Literature Review

Secondary Data: Books, journals, articles and related cases from

Lexis Malaysia – theory and information about conflict of laws in

arbitration have to be read

Data Collection

Documentary Analysis – cases related to conflict of laws in arbitration

should be collected through Lexis Malaysia database

Data Analysis and Interpretation - the cases of conflict of laws

in arbitration would be analyzed and interpret

Writing-Up and Completion

Initial Study

108

REFERENCES

Berg, A. J. (2006). Re-examining the Arbitration Agreement: Applicable Law-

Consensus or Confusion? ICCA Congress Series.

Briggs, A. (2009). The Conflict of Laws. (2nd

ed.) Oxford University Press.

Buys, C. G. (2005). The Arbitrators‟ Duty to Respect the Parties‟ Choice of Law in

Commercial Arbitration. St. John's Law Review. Vol. 79 ( Issue. 1), Article

3.

Collier, J. G. (2001). Conflict of Laws. (3rd

ed.) Cambridge University Press.

Davidson, W. S. W. and Rajoo, Sundra. (2006). Arbitration Act 2005: Malaysia

Joins the Model Law. The Malaysian Bar.

Ferrari, F. and Kroll, S. (2011). Conflict of Laws in International Arbitration. Wildy

and Sons Ltd.

Freeman, M. (2010). Conflict of Laws. University of London.

Greenberg, S., Kee, Christopher and Weeramantry, J. R. (2011). International

Commercial Arbitration: An Asia-Pacific Perspective. Cambridge University

Press.

Kickling, Rh. And Wu, Min Aun. (1995). Conflict of Laws in Malaysia.

Butterworths.

Lutterll, S. (2009). An International to Conflict of Laws in International Commercial

Arbitration. Kluwer Law International.

Ly, F. D. (2011). Conflicts of Law in International Arbitration. Retrieved on March

22, 2012, from

http://www.sellier.de/pages/downloads/9783866531703_leseprobe.pdf?code=

4a8fb234920bc290ddcb75fd50df852a

Maniruzzaman, A. F. M. (1993). International Commercial Arbitration: The Conflict

of Laws Issues in Determining the Applicable Substance Law in the Context

of Investment Agreements. Cambridge Journal. Netherlands International Law

Review. Volume 40 (Issue 2).

Martin, H. and Volker, T. (1989). Awarding Interest in International Arbitration.

Retrieved on March 18, 2012, from http://www.trans-lex.org/124400

109

McClean, J. D. (1993). Morris: The Conflict of Laws. (4th

ed) Sweet & Maxwell.

Mogan, K. S. Arbitration – Malaysia. International Law Office Newsletters.

Retrieved on April 10, 2012, from http://www.internationallawoffice.com

Mohanasundram, S. and Andri, K. GAR Reference. Retrieved on April 12, 2012,

from http://www.globalarbitrationreview.com/know-

how/topics/61/jurisdictions/55/malaysia/

Oon, Chee Kheng. (2004). Drafting Effective Dispute Resolution Clauses: Some

Considerations. Lawasia Business Law Conference.

Premaraj, B. (2007). The Choices of Law – Better Safe Than Sorry. The Malaysian

Arbitration Perspective. Retrieved on March 25, 2012, from

http://www.beldenlex.com/pdf/The%20Choices%20of%20Law%20-

%20Better%20Safe%20Than%20Sorry.pdf

Qtaishat, Ali Khaled. (2007). Choice of Law in International Arbitration. India Law

Journal.

Rajoo, Sundra. (2003). Law. Practice and Procedure of Arbitration. LexisNexis.

Richman, W. M. (2003). Understanding Conflict of Laws. LexisNexis.

Schafer, E., Verbist, H. and Imhoos, C. (2005). ICC Arbitration in Practice. Kluwer

Law International.

Tweeddale, A. and Tweeddale, K. (2005). Arbitration of Commercial Disputes.

Oxford University Press.

Webster‟s New World Law Dictionary. 2010. Retrieved on March 20, 2012, from

http://law.yourdictionary.com/

Yaqin, A. (2007). Legal Research and Writing. LexisNexis.