Revisiting the Proper Law of the Arbitration Agreement
Three recent decisions of the Courts of Appeal in Singapore and England provide an opportunity to revisit the common law approach to determining the proper law of the arbitration agreement. The proper law of the arbitration agreement is often overlooked in the drafting of arbitration clauses but is of primary importance where the validity of the arbitration agreement is in question.
The three decisions are:
- BNA v BNB & Anor  SGCA 84 ("BNA v BNB");
- Kabab-JI S.A.L v Kout Food Group  EWCA Civ 6 ("Kabab v Kout"); and
- Enka Insaat Ve Sanayi A.S. v OOO "Insurance Company Chubb" & Ors  EWCA Civ 574 ("Enka v Chubb").
I also consider whether courts, even the most international arbitration friendly ones like England and Singapore, give enough attention to the multifaceted interplay of choice of law in the interpretation of international arbitration agreements.
Given the brevity of this note for the form in which it is published, I only identify points where the common law approach diverges from the New York Convention and, in my view, insufficient attention has been given to the interplay of choice of law in the interpretation of international arbitration agreements, leaving a more in-depth discussion of these issues to a less succinct paper in future.
You can read Steven Lim's full post on our Commercial, Construction & International Arbitration Blog here.