Peter Ashford has had an article published in the American Review of International Arbitration (ARIA) (edited out of the Columbia Law School in New York) on the law of the separate agreement to arbitrate. Such agreements are often a clause in an international agreement agreeing to refer disputes to arbitration. By a legal fiction the clause is deemed to be a separate agreement and is governed (as are all agreements) by a particular law. Whilst the main or host agreement may well state a governing law that does not necessarily (or usually) govern the separate agreement to arbitrate. Peter’s article discusses whether the law of the arbitration agreement should follows the laws of the geographical place where the arbitration is grounded (the seat) or the governing law of the host contract. The discussion incorporates analysis of foreign approaches and argues for consistency of approach at least across countries that have an arbitration law modelled on a United Nations model and are parties to the New York Convention that governs the enforcement of arbitral awards. It concludes that the arguments in favour of the seat greatly outweigh those in favour of the host contract.
A full copy of the article is available here.