International Commercial Arbitration, Anticipatory Repudiation, and the Lex Mercatoria

Authors

Kyle Winnick, Benjamin N. Cardozo School of Law

Abstract

The scope of this Note is thus two-fold: (1) to delineate the doctrine of anticipatory breach as it is currently under the lex mercatoria; and, (2) to evaluate and argue for its consistency in application by international arbitral tribunals. Section I-A discusses when arbitrators will choose to apply the lex mercatoria as the substantive law of the dispute. Section I-B explains the doctrine of anticipatory repudiation and discusses its inherent ambiguity. Section IC assesses the role of the CISG and the UNIDROIT Principles as a manifestation of the lex mercatoria. Section II-A explores the severability issue and an arbitrator's competence to hear anticipatory repudiation claims in international commercial arbitration. Section II-B considers the nature of fundamental breach in international commercial arbitration under the lex mercatoria. Section II-C considers when a tribunal will hold that "it is clear" that a fundamental breach will occur, thus warranting termination. Section III discusses the inconsistency in the issuance of damages. Section IV ties these findings together and considers them as an expression of the new lex mercatoria. This section also contains concluding remarks concerning the parameters of anticipatory repudiation under the lex mercatoria.

Disciplines

Banking and Finance Law | Commercial Law | Contracts | Dispute Resolution and Arbitration | International Law | International Trade Law | Jurisprudence | Law

Recommended Citation

Kyle Winnick, International Commercial Arbitration, Anticipatory Repudiation, and the Lex Mercatoria, 15 Cardozo J. Conflict Resol. 847 (2014).
Available at: https://larc.cardozo.yu.edu/cjcr/vol15/iss3/9