In this section of the last issue of the Quarterly consideration was given to the association between an arbitration agreement and the proper law of the contract to which it relates.1 The instant purpose is to consider the possibility of an arbitration agreement, even when it exists as a clause in a wider contract, being governed by a separate and distinct proper law from that of the contract to which it relates. The prospect that within the common nexus of contract and arbitration there may be a duality of governing laws: the one appertaining to the contract and the other to the arbitration agreement.

The notion here floated runs counter to the strong bias in English law against any splitting of the proper law.2 There is good reason for this judicial attitude, for often there can be little advantage or benefit in having the various parts of a single contract governed by different systems of law. Nonetheless, the negative inclination has not been translated into a firm principle and on occasions the English courts have been prepared to decide otherwise.3 Nor is it necessarily the case that this judicial attitude has any relevance at all in the kind of circumstances here contemplated. When an arbitration agreement arises outside a contract and assumes the character of a submission of an existing dispute, it exists as a distinct and separate agreement from the contract to which it relates, notwithstanding that otherwise it has an inseverable logical and functional tie with the contract.4 Even when the arbitration agreement exists as a clause in the contract the same separateness may be identified, although it is now theoretical rather than physical. In English law it is well established that an arbitration clause assumes the character of a distinct contract, albeit ancillary and subordinate to the contract in which it is embodied.5 This physical or theoretical separateness, as the case may be, probably serves to place arbitration agreements into a special category and renders inapplicable, or at least of little weight, the policy considerations which underlie the reluctance of the English courts to split the proper There is an absence of what might be described as decisive judicial authority on the question of the proper law of arbitration agreements at common law. The crucial, but not wholly conclusive, authority is the decision of the House of Lords in Hamlyn