Publication Type

Journal Article

Version

acceptedVersion

Publication Date

1-2022

Abstract

Following two recent decisions from the apex courts in England and Singapore on the appropriate methodology to ascertain the proper law of an arbitration agreement, the positions in these two leading arbitration destinations have now converged in some respects. But other issues of conceptual and practical significance have not been fully addressed, including the extent to which the true nature of the inquiry into whether the parties had made a choice of law is in substance an exercise in contractual interpretation, the applicability of a validation principle, and the extent to which the choice of a neutral seat may affect the court’s determination of the proper law of the arbitration agreement. We propose a re-formulation of the common law’s traditional three-stage test for determining the proper law of an arbitration agreement that can be applied by courts and tribunals alike.

Keywords

proper law of arbitration agreemen, tlaw of the main contract, law of the seat, Enka v ChubbBNA v BNB, validation principle, ut res magis valeat quam perat, arbitration agreement, choice of law, Article V(1)(a) of the New York Convention

Discipline

Dispute Resolution and Arbitration

Research Areas

Dispute Resolution

Publication

Journal of Private International Law

Volume

17

Issue

3

First Page

439

Last Page

472

ISSN

1744-1048

Identifier

10.1080/17441048.2021.1967621

Publisher

Taylor & Francis (Routledge): SSH Titles - no Open Select

Copyright Owner and License

Authors

Additional URL

https://doi.org/10.1080/17441048.2021.1967621

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