UNIVERSITY OF SOUTH AFRICA (UNISA)
School of Law
⋄
ASSIGNMENT 02
First Semester 2026
⋄
Module Code: LJU4804
Module Name: Private International Law
Assignment No.: 02
Due Date: 7 April 2026
Semester: First Semester 2026
Unique Number: 251713
Submitted in partial fulfilment of the requirements for LJU4804 Private International Law
at the University of South Africa.
, UNISA | LJU4804 Private International Law – Assignment 2
Question 2.1: Applicable Law in the Absence of a Choice of Law Clause
Where the parties to an international commercial arbitration have not agreed on the governing
law for the substance of their dispute, the arbitral tribunal must determine the applicable
law through a structured process prescribed by the UNCITRAL Model Law on International
Commercial Arbitration, as incorporated into South African law by the International Arbitration
Act 15 of 2017.1
2.1.1 The Governing Framework: Article 28 of the UNCITRAL Model Law
Article 28 of the UNCITRAL Model Law, which forms Schedule 1 of the International Arbitration
Act 15 of 2017, sets out the framework for determining the rules applicable to the substance
of a dispute.2 The article operates in a hierarchical manner, first prioritising party autonomy
and then, only in the absence of a party choice, empowering the tribunal to act.
Under article 28(1), the tribunal must decide the dispute in accordance with such rules of law
as are chosen by the parties.3 Any designation of the law of a particular state is construed,
unless otherwise expressed, as referring directly to the substantive law of that state and not
to its conflict of laws rules. This eliminates the complications that arise from the doctrine of
renvoi.
In the present scenario, the contract between Print (Pty) Ltd and Lappen GmbH contains
no choice of law clause. Article 28(2) therefore becomes operative. This provision states
that, failing any designation by the parties, the arbitral tribunal shall apply the law determined
by the conflict of laws rules which it considers applicable.4 The tribunal is thus not bound
to apply a single predetermined conflict of laws system; it has the discretion to select the
conflict of laws rules it regards as most appropriate to the circumstances.
Key Distinction
Party Autonomy vs. Tribunal Discretion: Under article 28(1), party choice of law is
determinative. Only where no such choice exists does article 28(2) activate, giving the
tribunal discretion to select conflict of laws rules. Article 28(3) permits the tribunal
to decide ex aequo et bono only if the parties have expressly authorised it. No such
1
International Arbitration Act 15 of 2017, Schedule 1 (the UNCITRAL Model Law), art 28.
2
International Arbitration Act 15 of 2017, s 1 read with Schedule 1, art 28.
3
UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended in 2006), art 28(1).
4
UNCITRAL Model Law, art 28(2).
Page 1 of 12
School of Law
⋄
ASSIGNMENT 02
First Semester 2026
⋄
Module Code: LJU4804
Module Name: Private International Law
Assignment No.: 02
Due Date: 7 April 2026
Semester: First Semester 2026
Unique Number: 251713
Submitted in partial fulfilment of the requirements for LJU4804 Private International Law
at the University of South Africa.
, UNISA | LJU4804 Private International Law – Assignment 2
Question 2.1: Applicable Law in the Absence of a Choice of Law Clause
Where the parties to an international commercial arbitration have not agreed on the governing
law for the substance of their dispute, the arbitral tribunal must determine the applicable
law through a structured process prescribed by the UNCITRAL Model Law on International
Commercial Arbitration, as incorporated into South African law by the International Arbitration
Act 15 of 2017.1
2.1.1 The Governing Framework: Article 28 of the UNCITRAL Model Law
Article 28 of the UNCITRAL Model Law, which forms Schedule 1 of the International Arbitration
Act 15 of 2017, sets out the framework for determining the rules applicable to the substance
of a dispute.2 The article operates in a hierarchical manner, first prioritising party autonomy
and then, only in the absence of a party choice, empowering the tribunal to act.
Under article 28(1), the tribunal must decide the dispute in accordance with such rules of law
as are chosen by the parties.3 Any designation of the law of a particular state is construed,
unless otherwise expressed, as referring directly to the substantive law of that state and not
to its conflict of laws rules. This eliminates the complications that arise from the doctrine of
renvoi.
In the present scenario, the contract between Print (Pty) Ltd and Lappen GmbH contains
no choice of law clause. Article 28(2) therefore becomes operative. This provision states
that, failing any designation by the parties, the arbitral tribunal shall apply the law determined
by the conflict of laws rules which it considers applicable.4 The tribunal is thus not bound
to apply a single predetermined conflict of laws system; it has the discretion to select the
conflict of laws rules it regards as most appropriate to the circumstances.
Key Distinction
Party Autonomy vs. Tribunal Discretion: Under article 28(1), party choice of law is
determinative. Only where no such choice exists does article 28(2) activate, giving the
tribunal discretion to select conflict of laws rules. Article 28(3) permits the tribunal
to decide ex aequo et bono only if the parties have expressly authorised it. No such
1
International Arbitration Act 15 of 2017, Schedule 1 (the UNCITRAL Model Law), art 28.
2
International Arbitration Act 15 of 2017, s 1 read with Schedule 1, art 28.
3
UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended in 2006), art 28(1).
4
UNCITRAL Model Law, art 28(2).
Page 1 of 12
