INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW like Portugal still look at arbitration with some mistrust, it is equally true that more and more people are resorting to these alternative forms of dispute resolution, which are showing significant growth. In the field of the advantages of arbitration we highlight the speed of decisions, the possibility of the parties to choose the judges, the confidentiality of arbitration proceedings, the certainty that the arbitration agreement generates as to the way in which disputes will be resolved, the specialization of the arbitrators and the greater guarantees of neutrality that arbitration bodies offer, compared to state jurisdictions, usually “home-made” when it comes to the confrontation of its law with the law of another state. This phenomenon is often caused by the normal unfamiliarity of the foreign legal order, which impels the judge to try to use the legal system that he knows and dominates best. One of the great advantages of resorting to international arbitration is the possibility of choosing the law applicable to the merits of the case. This enshrines the principle of autonomy of the will in Private International Law, which the Civil Code and the 1980 Rome Convention on the Law Applicable to Contractual Obligations (in force in Portugal since 1994) also embrace. Note that the law authorises the parties to choose a law, i.e. a legal system, and not simply to refer to general principles or to the principles common to the legal systems connected with the dispute. In the absence of a choice by the parties, the court will apply, according to Article 52(2), “the law of the State with which the subject-matter of the dispute has the closest connection”. In order to determine this law, arbitrators must examine all the circumstances of the disputed relationship, inquiring about the connections that it presents with different state laws in order to subject it to the law of the state where these connections are predominant. In addition to the law applicable to the solution of the problem, the parties (or the arbitrators, in their silence) may also choose the procedural rules that best fit the problem or that best ensure the pursuit of the ultimate goal of any dispute resolution: justice. This important feature of the arbitral process is not always respected and there is a clear tendency to apply codified rules of procedure, due to an imperfect concept of arbitration and a lack of knowledge of its independence from state jurisdiction. In matters of contracts, the area most often submitted to arbitrators, it is of great importance the possibility of arbitrators taking into account the material result of the application to the individual case of the various rights connected with the dispute, by application of the principle of favor negotii, the cornerstone of Private International Law. For example, arbitrators are given the possibility of considering, among the possible legal systems, the only one which holds the
RkJQdWJsaXNoZXIy MTE4NzM5Nw==