Following on comments in the two preceding issues of the Quarterly concerning the question of the proper law of arbitration agreements1 and on the relationship between arbitration agreements and the proper law governing the substance of disputes2, it is almost unavoidable that the line of enquiry continue into the third fundamental conflicts issue, namely, the curial law. Which system of law governs the arbitration proceedings? The question raises some of the most interesting and difficult issues in contemporary arbitration law and to which English law has yet to provide a certain response.

One of the primary distinctions within the province of law is that between the substantive and the procedural, although it is widely appreciated that the distinction is not an easy one to draw on each and every occasion3. The distinction assumes a major significance in the conflict of laws, for since the judgment of Lord Brougham in Don v. Lippman 4 it has never been doubted that in judicial proceedings whatever relates to the question of procedure is governed by the lex fori, that is, the law of the place of the judicial forum5. Whatever system of law may govern the substance of a dispute, in procedural matters an English court is governed by its own domestic law.

The distinction between substance and procedure survives into arbitration law. At one level of perception arbitration may be viewed wholly as a procedural mechanism for the resolution of disputes and established by the parties as an alternative to the courts of law. This view has not, however, been allowed to dominate for purposes connected with the conflict of laws, and with the result that there is not an inseverable tie between arbitration and the law of the seat of arbitration. The basis of the arbitral process is to be found in contract, and the agreement, with its express and implied terms, is as substantive a phenomenon as any other general or special category of contract. It follows that the arbitration agreement from which the extra-judicial process springs falls to be categorized as substantive, and may be governed by its own distinctive proper law6. It is the arbitral proceedings conducted in pursuance to the arbitration agreement which are procedural and which may be governed by a different system of law. There is no question here of splitting the proper law, for two very different concepts are involved.