The question of how a court is to identify the proper law of an arbitration agreement (the AA law) where no specific choice of law has been made for it has recently been clarified by the Supreme Court in Enka Insaat Ve Sanayi AS v OOO Insurance Co Chubb  UKSC 38;  1 W.L.R. 4117.
Previous authorities were “long divided”. One approach had been to hold that an express choice of law for the contract usually denoted an implied choice for the arbitration agreement but it was not explained why the choice was characterised as implicit even where it was apparently worded for the whole contract. Another was that an express choice for the contract would “rarely” be a choice of AA law, because an arbitration agreement was a separate contract from the agreement containing it even for choice of law purposes. The parties were instead strongly presumed to have chosen the law of the arbitral seat to be the AA law.
In a recent publication, Matthew Chan (Twenty Essex) and Myron Phua (The Queen’s College, University of Oxford) explore the result in Enka v Chubb and possible implications of the decision.
The article ‘Persistent questions after Enka v Chubb’ was first published in the April edition of the Law Quarterly Review (2021) 137 LQR 216 and is available on Westlaw.