Governing Law

Arbitration Act 1996, English Arbitration Act, English courts, English Law, Governing Law, Uncategorized

(Herbert Smith Freehills LLP)/ /1 Comment
Herbert Smith Freehills

The English Arbitration Bill, introduced to UK Parliament in November 2023, aimed to ensure that the Arbitration Act 1996 remained fit for purpose and maintained England’s status as a leading destination for commercial arbitration. However, the bill was lost when the 2024 UK general election was called. In July 2024 the new government reintroduced the…

Arbitration, Arbitration Proceedings, Australia, Commercial Arbitration, Domestic law, Governing Law, International arbitration, UNCITRAL Model Law

(Twenty Essex and Banco Chambers) and (Banco Chambers)/ /Leave a comment

On 7 August 2024, the High Court of Australia (“Court”) delivered judgment in the much-anticipated Tesseract International v Pascale Construction [2024] HCA 24 in which the Court held that proportionate liability statutes apply in arbitration. This post seeks to draw attention to critical aspects of the decision of Australia’s highest court, and suggests that, properly…

Applicable Law, Governing Law, Lex Arbitri, lex contractus, Lex Fori, Limitation period, Place of arbitration, Procedure, Seat of the arbitration, Substantive Law

(Francis Burt Chambers)/ /1 Comment

Part One of this blog post discussed how uncertainty can arise in determining the Limitations laws that apply in international commercial arbitration proceedings. Part Two will now discuss some potential solutions.   One Solution The United Kingdom modified the traditional common law approach with the enactment of the Foreign Limitation Periods Act 1984 (UK), which…

Applicable Law, Governing Law, Lex Arbitri, lex contractus, Lex Fori, Limitation period, Place of arbitration, Procedure, Seat of the arbitration, Substantive Law

(Francis Burt Chambers)/ /Leave a comment

This two-part blog post discusses applicable limitation laws, i.e., legislation purporting to limit the time period within which claims in international commercial arbitration proceedings must be commenced (Limitation laws). It raises questions regarding how arbitral tribunals ought to decide whether to apply such Limitation laws and whether attempts to classify them as matters of ‘substance’…

Arbitration Agreements, English Law, French Law, Governing Law, Singapore, Vietnam

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The inaugural Vietnam ADR Week (“VAW”) took place in Ho Chi Minh City from 9 to 12 May 2023. As a sponsor of VAW, Vietnamese law firm, YKVN, organized a discussion panel on 10 May 2023 on a comparative analysis of the approaches taken by various national courts towards the governing law of the arbitration…

Arbitration Agreement, Governing Law, Turkey

, (Baysal & Demir Law Firm)/ /Leave a comment

Identifying the law governing the arbitration agreement has increasingly proven to be a complex and confusing process. This is particularly true after the UK Supreme Court’s Enka v. Chubb judgment, which already was the topic of extensive discussion on Kluwer Arbitration Blog (see here, here and here). In spite of being criticised by many scholars…

Applicable Law, Arbitrability, Arbitration Agreements, Australia, China, Governing Law, Law governing the arbitration agreement, Validity

, (King & Wood Mallesons)/ /Leave a comment

The doctrine of separability of arbitration agreements recognises that an arbitration clause contained in a broader agreement is separate and valid despite the invalidity of the rest of the agreement. The doctrine also raises a fundamental question: what is the governing law of the separable arbitration agreement as compared to the remainder of the contract…

2020 In Review, Applicable Law, Arbitration Agreement, Australia, English courts, French Law, Governing Law, Law governing the arbitration agreement, Pacific Islands, Paris Court of Appeal, Proper law of arbitration agreement, Singapore, Sweden

(Mihaela Maravela Law Office) and , / /Leave a comment

2020 saw important case law developments concerning the proper law of arbitration agreements, where the seat of the arbitration is in a different jurisdiction from the governing law of the main contract, particularly in the UK. However, various jurisdictions have adopted different approaches to this issue. It remains to be seen which jurisdictions will follow…

Annual Report, Brazil, Diversity, English Law, Governing Law, International arbitration, LCIA Arbitration

(PLMJ Law Firm) and (Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates)/ /Leave a comment

On 19 May 2020 the London Court of International Arbitration (hereinafter the LCIA or the Court) issued its annual casework report for 2019. This paper aims to present and analyse the numbers revealed in the report. The focus will be on the development of international arbitration in terms of market, diversity and inclusion, and applicable…

Arbitration Agreement, Contract Drafting, Governing Law, Implied Terms, Interpretation of Contracts

(Singapore Management University)/ /Leave a comment

The significance of an arbitration agreement’s proper law cannot be understated, given its importance vis-à-vis the arbitration agreement’s validity and consequent implications on the tribunal’s jurisdiction and the arbitral award’s enforceability. Notwithstanding this, parties rarely specify the arbitration agreement’s proper law – hence the need for a clear legal framework governing its determination. In BNA…

Arbitral seat, Arbitral Tribunal, Arbitration Act, Arbitration Agreement, English Law, Express choice, Governing Law, Separability, UK

(OBOR Legal Research Centre)/ /Leave a comment

Introduction Whenever the court is confronted with the task to determine the governing law of an arbitration agreement on the basis of knowing only (1) the stipulated governing law of the main contract and (2) the seat, a three-folded test will be applied. It inquires into (i) express choice, (ii) implied choice and (iii) closest…

Applicable Law, Arbitral seat, Arbitration Agreement, Arbitration clause, Commercial Arbitration, Governing Law, Seat of the arbitration, Separability

(Al Tamimi & Company)/ /Leave a comment

Introduction In BCY v BCZ [2016] SGHC 249, the High Court of Singapore found that parties could not be bound by an arbitration agreement that was part of an unexecuted underlying contract. This post examines the analysis taken by the Singapore High Court vis-à-vis the Swiss Supreme Court, in a similar fact pattern.   The…

Governing Law, India, Seat of the arbitration

(ICC International Court of Arbitration)/ /5 Comments

and Niyati Gandhi On 14 February 2014, the Supreme Court of India (SCI) in Enercon India v. Enercon GMBH [Civ. App. 2086/7 of 2014] (Enercon) found occasion to revisit issues in connection with potential laws that govern an arbitration agreement. The impugned arbitration agreement contained the following clause: 18. DISPUTES AND ARBITRATION 18.1 * *…