For reasons of absolute security, it remains a good practice for the parties to explicitly declare, in the arbitration clause itself, the right that the parties wish to apply to their arbitration agreement. A much-anticipated decision by the UK Supreme Court on 9 October 2020 illustrates, in a London-based arbitration proceeding, how English courts will determine the right to an arbitration agreement. The decision is a clear reminder of the importance of developing an arbitration agreement with care and precision. This was contrary to the Approach of the Court of Appeal, which held that there was a “strong presumption” that the right of the seat would govern the arbitration agreement if there was no explicit choice for the main agreement. ” … that the contract that gave rise to a dispute in this case does not include the choice of the law to govern the contract or arbitration agreement under the contract. Under these conditions, the validity and scope of the arbitration agreement (and, in our view, the rest of the dispute settlement clause that contains that agreement) are governed by the right of the selected arbitration seat, as the law with which the dispute settlement clause is most closely linked. Therefore, we confirm the conclusion of the Court of Appeal, although for different reasons, that the law applicable to the arbitration agreement is English law. Although the Supreme Court held that there could be circumstances in which English courts would decide to defer a foreign jurisdiction to a foreign jurisdiction because of the scope of a compromise clause to a foreign jurisdiction, it would be very little in practice.17 In particular, the Court confirmed that it would generally be inappropriate to see a foreign court in circumstances where foreign judicial proceedings are ongoing. which determines the scope of the arbitration procedure, the same procedure that is the subject of the anti-appeal decision sought18 The minority (Lords Burrows and Sales) agreed by a majority that, if the parties have expressly or implicitly chosen the law for the main contract, that election normally extends to the arbitration agreement. However, they disagreed on what the default position should be if there is no such choice. They felt that the law with which the main contract is most closely bound should govern the arbitration agreement, considering that this is the law with which the arbitration agreement is also most closely linked.
The minority considered that the treaty was “most closely linked” to Russian law and that the arbitration agreement should be governed by Russian law. As such, Chubb Russia`s appeal should have been allowed to consider whether there had been a breach of the arbitration agreement in order to justify the granting of a referral order referred to the Commercial Court. The Court of Appeal set aside the trial decision and issued a publication ban. The Court of Appeal found that there was a “strong presumption” that, in the absence of an explicit choice of AA law, the parties would have tacitly chose the curiel right to govern the arbitration agreement. In the case of Sulamerica, the Tribunal even found that the main contractual law had only relative weight in the determination of the AA Act and that this general rule was subject only to certain characteristics of the case, which are strong. The Court of Appeal did not specify what these powerful compensating factors entail, but the law of the main contract, different from the law of curiosities, was not one of them. Define the law on the arbitration agreement. The Supreme Court defined the following key principles for determining the right to the arbitration agreement: The majority of the Supreme Court found that, in general, if the parties did not expressly or implicitly choose the law governing the arbitration agreement, but chose the law that applies to the main contract to promote the security and consistency that this last election of law applies to the arbitration agreement.