Outlook (July 2020): a roundup of news and views from the 39 Essex Commercial and Construction Group

Welcome to the July 2020 edition of Outlook, a roundup of news and views from the 39 Essex Commercial and Construction Group.

Starting on Monday 27 July, the UK Supreme Court will hear, over two days, an expedited appeal from the Court of Appeal in Enka v Chubb. The first issue for determination by the court will be: What is the correct approach to determining the proper law of an arbitration agreement? Among other things, Lords Kerr, Sales, Hamblen, Leggatt and Burrows will also consider the role of the court of the seat of an arbitration and the circumstances in which an English court may permit a foreign court to determine whether proceedings before the foreign court give rise to a breach of an arbitration agreement. The case will, no doubt, be watched extremely closely by dispute resolution practitioners around the world, not only in common law jurisdictions.

In advance of the hearing, we are extremely pleased to present the articles in this month's newsletter, all on the topic of the proper law of an arbitration agreement. Steven Lim, Ben Olbourne, Niraj Modha and Philippe Kuhn first jointly consider several recent significant decisions from a number of jurisdictions. They then each separately consider the question normatively and offer some thoughts as to possible approaches and emphases. The articles have been adapted from a webinar, The Proper Law of An Arbitration Agreement: Making Sense of A Muddle, presented by Steven, Ben, Niraj and Philippe on 30 June 2020. A recording of the webinar can be viewed on our website.

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