Section 103 of the Arbitration Act 1996 transposes article V of the New York Convention 1958 into English law. It allows an English court to refuse to recognise or enforce a foreign arbitral award on the ground that the relevant arbitration agreement was invalid “under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made”.
The Supreme Court’s decision in Kabab-ji v Kout Food Group  UKSC 48;  2 All E.R. 911 clarifies the law on several issues potentially arising in that context, including how the principles restated in Enka Insaat Ve Sanayi AS v OOO Insurance Co Chubb  UKSC 38;  1 W.L.R. 4117 for ascertaining what law was selected to govern an arbitration agreement are equally applicable to the inquiry under section 103.
In a recent publication, Matthew Chan (Twenty Essex) and Myron Phua (Herbert Smith Freehills) discuss the reasoning in Kabab-ji v Kout Food Group, its implications, and the questions it leaves unanswered.
The article ‘Alleged non-parties to an arbitration agreement’ was first published in the July edition of the Law Quarterly Review (2022) 138 L.Q.R. 276 and is available on Westlaw.