Comparative Guides
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Results: 4 Answers
International Arbitration
6.
Applicable law issues
6.1
How is the law of the arbitration agreement determined in your jurisdiction?
 
UK
The doctrine of separability means that it is possible for an arbitration agreement to be governed by a different law from the law of the substantive contract. The governing law of an arbitration agreement is to be determined by reference to three factors (as set out in Sulamerica CIA Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638):

  • express choice (ie, the parties may expressly agree on the governing law of the arbitration agreement);
  • in the absence of express choice, an implied choice of law (eg, based on the governing law of the substantive contract or the choice of seat); and
  • failing that, the law with the “closest and most real connection” to the arbitration agreement (again, it is likely that the governing law of the substantive contract and the choice of seat will be relevant to this analysis).
For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
6.2
Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?
 
UK
Yes, Section 46(1) of the Arbitration Act provides that the tribunal shall decide a dispute in accordance with the law chosen by the parties as applicable to the substance of the dispute. If there is no such choice or agreement, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable (Section 46(3)).

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills