This chapter covers a preliminary issue that arises for consideration in investment arbitration. It can be read in conjunction with Chapter 8, which addresses another preliminary issue – the treatment of evidence. The resolution of preliminary issues should precede any attempt by an arbitral tribunal to fully evaluate the strength of each disputing party’s submissions on the merits. However, excepting applicable laws governing the dispute, guiding principles on the assessment of evidence are discussed by some arbitral tribunals, but not others. This chapter focuses on the sources and interplay of laws applicable to the substance and procedure of a claim. Section 1 deals with the lex causae, the law applicable to the substance of the dispute. Section 2 deals with the lex arbitri, the law governing the arbitral process. Section 3 deals with the lex loci arbitri, the law of the seat of arbitration.
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