Lju 4804: Department Of Jurisprudence: Private International Law Assignment 2 2022

2.1 The Contract contains no choice of law clause. How would the arbitration tribunal determine the law applicable to the substance of the dispute? In respect of private international law, it is of important to determine the law applicable to the various aspects of an international arbitration matter. It is important to understand that there are potentially three different legal systems, or sets of rules, that need to be determined in an international arbitration matter. These are the law of the seat of arbitration, or lex arbitri, the law governing the arbitration agreement and the law applicable to the substance of the arbitral dispute. Article 16(1) of the Uncitral Model Law provides that an arbitration clause contained in a contract “shall be treated as an agreement independent of the other terms of the contract”. This refers to the doctrine of severability, which means that a clause or clauses may be severed from the rest of the contract and exist separately from the contract they are contained in. In the arbitration context, this means that the arbitration clause forms an agreement severable from the underlying contract and may potentially be governed by a different legal system. The law applicable to the substance of the dispute has to be determined. In this regard, article 28 of the UNCITRAL Model Law is applicable. 2.2 Would the parties be permitted to choose CISG to govern the substance of their dispute where it would otherwise not be applicable? In terms of the United Nations Vienna sales convention, the contract for international sale of goods (CISG) is a contract for the sale of movable tangible goods between parties who have their places of business in different states.1 Based on the scenario in question, it is evident that Jewel Pty (Ltd) is a South African company and its place of business is Durban. Argentum GmbH principal place of business is in Hamburg. This therefore indicates that these two companies are situated in two different States.