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THE LAW GOVERNING ARBITRATION AGREEMENTS: WHERE TO START?

Lloyd's Maritime and Commercial Law Quarterly

THE LAW GOVERNING ARBITRATION AGREEMENTS: WHERE TO START?

Anthony Kennedy*

Enka v Chubb
How should a court charged with determining the proper law of an arbitration agreement contained within the parties’ main contract, where the parties have expressly chosen country A’s law to govern that main contract but country B as the seat of the arbitration, carry out its task? Prior to the Court of Appeal’s decision in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb,1 certain matters2 were clear, if not universally popular.3 First, the principles of the Rome I Regulation4 apply to determine the main contract’s governing law. Second, in order to identify the arbitration agreement’s proper law, the traditional common law method had to be applied. Thus, as regards the arbitration agreement, a court must ask: (a) was there an express choice

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