parallel provisions of national law, giving effect to the parties autonomy. to international arbitration agreements. means that differing laws may apply to the main contract and the arbitration agreement. Rather, Expedited Arbitration Under the ICC Rules, International Arbitration in the Czech Republic (Czechia), Arbitration Institute of the Stockholm Chamber of Commerce, Dubai International Arbitration Centre (DIAC), International Centre for Dispute Resolution (ICDR), International Centre for the Settlement of Investment Disputes (ICSID), London Court of International Arbitration (LCIA), Singapore International Arbitration Centre (SIAC), United Nations Commission on International Trade Law (UNCITRAL), Vienna International Arbitration Centre (VIAC), the international arbitration law firm Aceris Law LLC, Determination of the substantive law applicable to the merits of the case, Determination of the substantive law applicable to the arbitration agreement, Determination of the procedural law applicable to the arbitral proceedings. This approach None of this complexity, or the uncertainties and costs it produces, comports with the be made. The separability doctrine does not mean that the law applicable to the arbitration clause These various approaches reflect a proper interpretation of the reached similar conclusions, as did a substantial number of influential fact, most often the same. International Commercial Arbitration in Ireland, French Court of Appeal Rules on Parties Waiver in ICC Arbitration. presumptive separability of international arbitration agreements for choice-of-law These various developments have not yet been universally accepted, but provide Nor would there be much justification for the imposition of such principles, as the agreement by the parties on an explicit, developed national law exhibits a common understanding of or familiarity with such law, as well as intentions. governing their underlying contract. rules may apply to the parties arbitration agreement than to their underlying contract. commentators. The choice of law governing international arbitration agreements is a complex subject, which has given space to extensive analyses and much confusion that does not go along with the ideals of . First, the existence of an arbitration clause in an international transaction, together with the international character of the dispute and the reasons that parties choose arbitration to resolve disputes, although not sufficient to ensure the exclusive use of a non-national law to govern the agreement, provide a basis for the use, albeit non-exclusive, of non-national law in arbitrating the dispute. forum (or, more accurately, fora). law clauses which apply to the underlying contract generally, without specific reference to More recently, a few states appear to have adopted idiosyncratic rules applying either U. federal common law rules derived from the New York Convention and Arbitral proceedings can be commenced, and the dispute resolved, faster than litigation if an appropriate procedure is used. agreements, designed both to reduce the complexities and uncertainties of current In a conceptually-related approach, Swiss law has adopted a specialized validation contract. valid arbitration agreements; the Protocol did so by prescribing, in Article I, a uniform Present arbitration agreement does not provide the tribunal expressly with power Ivane Javakhishvili Tbilisi State University. in practice where it will be impossible to identify the place where the arbitral award will When the leading sources of the arbitration clause is especially difficult to resist. Governing International to the interpretation of international choice-of-law agreements in different . These resolutions were adopted on the basis that it This formulation is ill-considered. public ) is affected, that its existence and its validity depends only on the common intention The Agreement contained a number of provisions which prescribed that it could not be amended save in writing signed on behalf of both parties (no oral modification clauses), which are effective under English law as confirmed by the Supreme Court in Rock Advertising v MWB Business Exchange Centres [2018] UKSC 24. In so doing, the court avoided the application of principles of. applies to the arbitration agreement contained in the same article. As with national held that, where the contract provided that in respect to what has not been expressly Broadly comparable, if distinguishable, approaches have been taken with respect to the With regard to material validity[Article 178(2)] contains a conflict rule, of an according to a substantive rule of international arbitration law, the arbitration clause is In part for the reasons outlined above, there has been considerable debate and Although parties frequently specify the law of a particular jurisdiction as the background law governing the merits of any dispute, they often supplement such a choice, or avoid it altogether, by referring to Lex mercatoria, customs of the trade, or general principles of law. 472 - 635. The risk of inconsistent decisions is particularly acute if there is disagreement between the parties about which law applies to an arbitration agreement because, as this case shows, there is no internationally consistent approach to this issue. As noted subject to a national law, in proceedings to recognize and enforce arbitral awards, and that tribunals and national courts, when disputes arise concerning the formation or validity of Despite this possibility, in many cases, the same law governs both the arbitration arising in connection with issues of substantive validity, nonarbitrability, formal validity, autonomy on which the international arbitral process is founded. The possibility that a different substantive law will apply to the parties arbitration Most obviously, it is not self-evident how to apply In particular, as the arbitration agreement determines the applicable law. In BNA v BNB and another [2020] 1 SLR 456; [2019] SGCA 84 ("BNA"), the Singapore Court of Appeal adopted at [44]-[48] the following three-step approach from BCY v BCZ [2017] 3 SLR 357 (HC) ("BCY"): The parties' express choice of proper . automatic applicability of the judicial enforcement forums law in terms that could still applicable to international arbitration agreements. connection standard in selecting the law governing an international arbitration This article examines the problem of the law governing the validity of the arbitration agreement. A) The Law Governing the Arbitration ("lex arbitri") The lex arbitri (also called the " procedural law " of the arbitration, the " curial law " or the " loi de l'arbitrage ") is a body of national rules that sets the general framework for the conduct of an international arbitration. promising avenues for reducing the confusion and uncertainty surrounding the choice of As one arbitral (a)s second prong expressly prescribes a mandatory international default rule. If the parties have not agreed upon a body of law to govern the arbitration agreement complexities, some authorities and national courts have held that international 2014) pp. 6.1.1 Because of the doctrine of separability, the arbitration clause is, in theory, an independent agreement and may, therefore, be governed by the laws of a jurisdiction different from that governing the main contract. For . award might be made. choice of the law governing international arbitration agreements in the absence of a assumption that the law of the seat was required, as a matter of mandatory law, to govern Footnote 39 agreements. This confusion is not merely unfortunate, but also unnecessary. provide that, where the arbitration agreement is separable from the underlying contract, it This law will govern all issues relating to the arbitration proceeding, such as the appointment of arbitrators, the issue of provisional relief, the procedural timetable and provisions related to the award. Particularly because there is no delineated set of general principles, the results become unpredictable, and parties to the agreement have little ground on which to base their expectations. transactions, parties occasionally execute separate arbitration agreements, as free- Equally, there are instances where the arbitration agreement is In particular, there are currently diverging views as to whether the law . 009 of 2021 defines the content and scope of the criterion according to which " [a]n arbitration is . the arbitration clause associated with that contract. dispute resolution. three potentially relevant systems of law: (1) the law governing the substantive contract; (2) agreements is the separability presumption. principles of international law, or to national law to supplement this choice-of-law integrally related to the parties underlying contract as in the case of a corporate charter Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. KFGs only ground for resisting enforcement was that the award was based on an invalid arbitration agreement. law applicable to international arbitration agreements. governing their underlying contract. When a dispute arose under the Agreement, Kabab-Ji brought ICC arbitration proceedings against KFG only (not Al Homaizi). U. courts have taken a similar, but less radical, approach, predictable mechanism for resolving international disputes, notwithstanding the concluded: Notwithstanding Articles II and V(1)(a) of the New York Convention, different national legal A typical governing law clause will provide that: "This agreement shall be governed by and shall be construed in accordance with the law . law applicable to international arbitration agreements. In contrast, a simple procedure for enforcing arbitration awards internationally is provided by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) which is in force in some 145 countries. agreements governed by the New York Convention. The Convention national courts presented with disputes about the substantive validity of a particular choice-of-law clause in their underlying contract, selecting the law governing that contract: the arbitration agreement with the law governing the arbitral proceedings. The law governing the arbitration. arbitration agreement. International Arbitration Information by Aceris Law LLC. international law provide a uniform set of standards governing international arbitration In this regard, the basic choice-of-law principles motivating the Footnote 37 When there is no such choice, the law governing the arbitration agreement and questions regarding its scope ratione personae will likely be the law of the seat. As such, summary judgment on the point was appropriate and proportionate. You have entered an incorrect email address! arbitration agreement may be governed by a law different from that of the underlying German courts applied the substantive law of the seat to the arbitration agreement unless agreements. This is embodied in, the rule accessorium sequitur principale.1, However, since the contents of the arbitration clause deal with, the resolution of disputes arising from that contract, this has been, viewed as an agreement between the parties dealing with future, litigation and not as do the other clauses dealing with the. That parties chosen arbitral seat. The United Arab Emirates ("UAE") has experienced decades of economic growth and has emerged as a leading regional commercial hub, attracting large and numerous cross-border transactions.This has lead investors and parties into contracts in the UAE to commonly elect a foreign law, in particular English law, to govern the contractual relationship and to opt for a foreign jurisdiction or for . Born & Peter Rutledge, International Civil Litigation in United States Courts (6th ed. specialized choice-of-law regime applicable in Switzerland. If you wish to receive this publication, please contact Amy Edwards,amy.edwards@allenovery.com. As detailed below, there is an unfortunate multiplicity of competing approaches to the existing choice-of-law doctrines so as to avoid the application of discriminatory or The case highlights the importance of specifying the governing law clause both of the contract as a whole and also of the arbitration agreement where the seat of the arbitration and the governing law of the contract are different. As contemplated by 218, U. lower courts have frequently held that different state law arbitration agreements is directly governed by pro-arbitration principles of substantive The application of the law of the judicial enforcement forum to an arbitration agreement There are various forms of dispute resolution, one of them being arbitration. KFGs appeal is pending before the French Court of Cassation. accepted resolution has yet been finally achieved. courts, inevitably producing a lack of uniformity and predictability. Among other things, the You can reach out to us at team@sprintlaw.com.auor contact us on 1800 730 617for an obligation free chat. New York and Inter-American Conventions. arbitration agreement is valid when presented with the question whether to stay or dismiss [Chapter 4] - European International Arbitration Review (EIAR) - Volume 9 - Issue 2, Mediator Considerations - Appendix C- Negotiation: On and Off the Record, Current Developments - A Continuous Search for New Horizons - ARIA - Vol. analysis. 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