Arbitration Agreement Substantive Law

Different laws are likely to regulate different aspects of international arbitration. For example, different legal systems may apply: the case also shows how important it is to think from the outset about where a party might attempt to impose an arbitral award if it succeeds in arbitration. Parties must assess very carefully the consequences of enforcement in a given jurisdiction, as the ability to impose an arbitral award may depend not only on compliance with all applicable local procedural laws, but also on the support of local courts. In one case in the United Arab Emirates, enforcement of an arbitral award was refused due to the absence of a specific oath form requested by witnesses. Although this case was decided before the UAE signed the New York Convention on the Enforcement of Arbitral Awards, so a similar case could be decided differently, the outcome would only be known after other costly and protracted disputes. – Whether a party was duly represented at the conclusion of the arbitration agreement, which is governed by the law of the State in which the agent entered into the arbitration agreement On the basis of these provisions, it was found that the parties had made an explicit choice of English law to settle the arbitration agreement. This conclusion has been reinforced by the arbitration clause itself, which provides in Article 14(3): `The arbitrator(s) shall apply the provisions of the agreement`. The tribunal interpreted this interpretation to mean that the arbitrator was required to apply all provisions, including the English clause relating to the applicable law, not only to substantive disputes, but also to questions of jurisdiction. It is clear that, in an ideal world, the parties expressly provide for all the laws applicable to their agreement, but as has already been said, the parties often choose only the law that governs the substantive contract and, possibly, the rules of procedure, leaving open other applicable laws, such as those relevant to the arbitral tribunal and the seat (or place) of the arbitration.

This test was applied in Arsanovia Ltd & Ors v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm) in circumstances where the parties had explicitly chosen Indian law for the underlying contract and London as the seat of arbitration. In this case, the debate focused on the relative importance of the (Indian) clause on the legislation in force in relation to the (London) seat of the arbitration proceedings in determining the law of an arbitration agreement. The court found that the parties intended, on the basis of the facts, that Indian law should be enforced. This is a difficult issue and depends on the circumstances of the case and the action of the arbitral tribunal or national court considering the matter. This ambiguity may lead to costly satellite procedures that would not be necessary if the law applicable to the arbitration agreement were defined in the arbitration agreement. (a) The substantive validity of an international arbitration agreement shall be determined in accordance with the law chosen by the parties to this Agreement or, in the absence of indication, in accordance with the law applicable to the place (seat) of the arbitration proceedings. In the absence of signs to the contrary, the explicit choice of the law on the substantive contract is a strong indication of the intention of the parties with regard to the arbitration agreement. It is therefore likely that the search for an implicit choice of the right to regulate the arbitration agreement is likely. to conclude that the parties intended to ensure that the arbitration agreement was governed by the same legal order as the substantive contract, unless there were other factors indicating a different conclusion. In English law, the approach generally taken by the courts is that substantive contract law also governs the arbitration agreement. .

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