On 9 October 2020, the Supreme Court handed down its much-awaited decision in Enka v Chubb  UKSC 38, in which the central issue was how an arbitral tribunal applying English law should approach the issue of determining the proper law to be applied to questions arising in relation to an arbitration agreement. In an earlier piece, published in July 2020 shortly before oral argument on the appeal took place (see “The Proper Law of an Arbitration Agreement”, Outlook, July 2020), we considered this issue and sought to anticipate what the Supreme Court might do. Among other things, we expressed the hope that the Supreme Court might bring certainty, if not also conceptual clarity, to this previously muddled area. As we seek to develop, we feel the Supreme Court has largely achieved this, although understandably there remain at least a few points still to be resolved in future cases.
In this piece, we will first consider in some detail what the Supreme Court did decide and what it may have left open for another day. We will also reflect briefly on some of the other cases we considered in our earlier piece to see how they might stand in light of the Supreme Court’s decision. We then move on to consider a number of specific issues that either were considered by the Supreme Court or remain still to be resolved in light of the decision, as well as offering what we see as some key practical tips for practitioners going forward.
We addressed the significance of this issue as to the proper law of an arbitration agreement in our earlier piece. Accordingly, here we turn straight to the Supreme Court’s decision.
You can read the full post on our Commercial, Construction & International Arbitration Blog here.