Re-formulating the test for ascertaining the proper law of an arbitration agreement: A comparative common law analysis

• Main Authors: CHAN, Darius, TEO, Jim Yang
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2022
• Subjects: proper law of arbitration agreemen; tlaw of the main contract; law of the seat; Enka v ChubbBNA v BNB; validation principle; ut res magis valeat quam perat; arbitration agreement; choice of law; Article V(1)(a) of the New York Convention; Dispute Resolution and Arbitration
• Online Access: https://ink.library.smu.edu.sg/sol_research/3805; https://ink.library.smu.edu.sg/context/sol_research/article/5763/viewcontent/ReformulatingTestProperLawArbitration_2022_av.pdf
• Institution: Singapore Management University

Following two recent decisions from the apex courts in England and Singapore on the appropriate methodology to ascertain the proper law of an arbitration agreement, the positions in these two leading arbitration destinations have now converged in some respects. But other issues of conceptual and practical significance have not been fully addressed, including the extent to which the true nature of the inquiry into whether the parties had made a choice of law is in substance an exercise in contractual interpretation, the applicability of a validation principle, and the extent to which the choice of a neutral seat may affect the court’s determination of the proper law of the arbitration agreement. We propose a re-formulation of the common law’s traditional three-stage test for determining the proper law of an arbitration agreement that can be applied by courts and tribunals alike.