The Proper Law of the Arbitration Agreement – Express Choice makes a come-back? An update

May 4, 2020

With impeccable timing my bulletin on express choice was published on the very same day as the Court of Appeal handed down its judgment in Enka v Chubb (“Chubb”).

The Court took the opportunity to clarify the law saying: “… the time has come to seek to impose some order and clarity on this area of the law, in particular as to the relative significance to be attached to the main contract law on the one hand, and the curial law of the arbitration agreement on the other, in seeking to determine the [arbitration agreement] law. The current state of the authorities does no credit to English commercial law which seeks to serve the business community by providing certainty.”

The Court recited the trite law that the law of an agreement is to be determined by applying the three-stage test required by English common law conflict of laws rules, namely (i) is there an express choice of law? (ii) if not, is there an implied choice of law? (iii) if not, with what system of law does the arbitration agreement have its closest and most real connection?

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