What Is Law Governing Arbitration Agreement

Geplaatst door MCautreels op 20 december 2020

Another widely seen and very persuasive approach is the application of the law of the place with the closest connection with arbitration. This is done on a case-by-case basis and can be seen in cases without explicit consideration, as in Firstlink. Where the parties have decided to settle their disputes, but have not specified the right of the contract or the arbitration agreement, what laws apply to the arbitration agreement? This painful issue was considered by the Supreme Court in an expedited complaint in enka Insaat Ve Sanayi AS (respondent) against OOO Insurance Company Chubb (Appellant) [2020] UKSC 38. Since all the judges in this Supreme Court case agreed in their judgments, the question of what right to apply an arbitration agreement without a clear choice is an issue that courts and commentators have long faced and in which they are divided, and the Court of Appeal has fallen randomly on both sides of the issue in recent years. It is perhaps not surprising, then, that although they reached an agreement that the subject was divided, the Supreme Court body itself was divided – Lords Hamblen and Leggatt (with whom Lord Kerr agreed) delivered the verdict by a majority; Lord Burrows gave a dissenting judgment (with whom Lord Sales agreed), and Lord Sales also gave his own judgment. These cases include a total of 115 pages discussing the relative benefits of the “primary approach to contract” (the law of the arbitration agreement follows that of the main contract) and the “seat approach” (the law of the arbitration agreement follows that of the arbitration headquarters). We are focusing here on the majority judgment, which provides useful guidance on how the courts will approach this conundrum. Isolation means that if you try to challenge the conciliation agreement, you have to deal directly with such an agreement. See, in general, Emmanuel Gaillard – John Savage (Eds), Fouchard Gaillard Goldman On International Commercial Arbitration 197-240 (Kluwer Law International, 1999).

The second factor was the impact of Brazil`s choice of law as the law that governs the arbitration agreement; That is, it could not be implemented without the agreement of both parties. If Brazilian law applies to the arbitration agreement, it can only be applied with the agreement of both parties, and the judge stated that there was “at least a serious risk that a Brazilian choice of law would significantly undermine that agreement.”


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