Publication Type
Journal Article
Version
publishedVersion
Publication Date
10-2020
Abstract
The common law choice of law principles for determining the proper law of an arbitration agreement previously thought to be settled by the English Court of Appeal’s decision in Sulamérica v. Enesa [2013] 1 W.L.R. 102 have now been thrown into disarray after a recent string of three judgments: starting with the Singapore Court of Appeal’s decision in BNA v. BNB [2019] S.G.C.A. 84, followed by two decisions from the English Court of Appeal in Kabab-Ji v. Kout Food Group [2020] EWCA Civ 6 and Enka Insaat Ve Sanayi A.S. v. OOO ‘Insurance Company Chubb’ [2020] EWCA Civ 574.This article undertakes a comparative analysis of English and Singapore case law and argues that the common law should take party autonomy more seriously by ascertaining whether the parties have a clear and real intent to choose a particular system of law to govern their arbitration agreement. The current reliance on presumptions or inferences of what the parties must have intended is in reality an artificial arrogation to judges and arbitrators on what ‘commercial’ sensibilities businessmen should be taken to have. In the absence of a clear and real intent, arbitrators and state signatories to the New York Convention ought to apply the law of the seat as the default choice of law rule in the New York Convention.
Keywords
governing law, proper law, arbitration agreement, choice of law, conflict of laws, Sulamérica, Kabab-Ji, Enka, BNA, separability, validation principle, Article V(1)(a), New York Convention.
Discipline
Dispute Resolution and Arbitration
Research Areas
Dispute Resolution
Publication
Journal of International Arbitration
Volume
37
Issue
5
First Page
635
Last Page
648
ISSN
0255-8106
Publisher
Kluwer Law International
Citation
CHAN, Darius and TEO, Jim Yang.
Ascertaining the proper law of an arbitration agreement: The artificiality of inferring intention when there is none. (2020). Journal of International Arbitration. 37, (5), 635-648.
Available at: https://ink.library.smu.edu.sg/sol_research/3200
Copyright Owner and License
Publisher
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.
Additional URL
https://kluwerlawonline.com/journalarticle/Journal+of+International+Arbitration/37.5/JOIA2020030