30 Jun 2020

WEBINAR: The proper law of an arbitration agreement: making sense of a muddle?

An arbitration agreement is "severable" from the contract in which it is found.  This means an arbitration agreement persists even if the contract itself is void or terminated. If the arbitration agreement is separate from the main contract, which law governs it? This is an important question. There are multiple possible answers, some of which uphold the intention to arbitrate and others which will vitiate it.

In the absence of an express provision, the common law approach has vacillated between presumptively applying the governing law of the contract or the law of the place or seat of arbitration, but reversing the presumption when one or the other invalidates the arbitration agreement. The approach favoured in some other quarters is 'whichever law provides the best prospects of upholding the arbitration clause'. In the UK, the Supreme Court will soon consider the issue for the first time in a generation.

In this webinar, our highly experienced international arbitration practitioners aim to make sense of the muddle, in anticipation of a pronouncement from the Supreme Court.  They review the state of play in several jurisdictions where the issue has been considered in recent cases and consider whether these approaches are consistent with the New York Convention and the UNCITRAL Model Law. They also consider the practical implications of this issue and assess what the Supreme Court might conclude later this year. The webinar discusses the very recent cases of:

  • Enka Insaat Ve Sanayi AS v OOO "Insurance Company Chubb" [2020] EWCA Civ 765, the case on appeal to the Supreme Court. Is the English approach now the validation principle in disguise?
  • BNA v BNB & Anr [2019] SGCA 84. A "validation approach", if not the validation principle?
  • Kabab-Ji S.A.L v Kout Food Group [2020] EWCA Civ 6. Is there still room for an approach which applies common law principles of interpretation?





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Date and Time:

Tuesday 30th June @ 9.30am (UK)


PLEASE NOTE: This webinar is hosted by Zoom. Please visit the Zoom website for their Terms & Conditions.