Originally from Iura Novit Curia in International Arbitration

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I. INTRODUCTION

The procedural treatment of the rules of law is a complex issue, which is not answered in a uniform way in the individual legal systems. This is particularly true with foreign law. While common law jurisdictions tend to treat it as fact, which must be proved by the parties, civil law jurisdictions traditionally tend to apply the principle iura novit curia, based on which the content and the application of the law – both domestic and foreign law – is a matter for the court. 

This dilemma also arises, in slightly different terms, in international arbitration. Although arbitrators may have a specific knowledge of the applicable law (and are sometimes selected on that ground), this is true only in a limited number of cases. Moreover, arbitral tribunals do not have a lex fori, so that all law can be regarded as “foreign law” to them. The question is therefore whether an arbitral tribunal has the power, or is under a duty, to establish sua sponte the content of the applicable rules of law, or whether this is a matter for the party to plead and to prove, like the facts on which they rely for their case.

It is undisputed that the rule iura novit curia – or iura novit arbiter, as it is often referred to in this context – is part of Swiss arbitration law. However, both the legal basis of this rule and its implications are not entirely clear (section II). Moreover, a conspicuous, although not entirely unproblematic, case law deals with the limits to the rule, in particular those resulting from overriding principles such as the fundamental right of the parties to be heard and the principle ne eat iudex ultra petita partium (section III).

II. THE PRINCIPLE IURA NOVIT ARBITER UNDER SWISS LAW

A. Iura Novit Arbiter in Swiss Arbitration Law

It is settled law in Switzerland that an arbitral tribunal is subject to iura novit curia. The Swiss Federal Tribunal has constantly reaffirmed this principle in a long line of decisions.