Harmonising Judicial Approaches to Choice of Law in Arbitration Agreement

Maxwell Chambers successfully concluded Maxwell Lectures: Harmonising Judicial Approaches to Choice of Law in Arbitration Agreement on 19 August 2021, featuring Dr. Winnie Jo-Mei Ma from The Arbitration Chambers.

In the absence of the parties’ express choice of law for their arbitration agreement and any default choice provided by the applicable legislative or institutional rules, courts worldwide remain divided between the law governing the contract and the law of arbitral seat. This is because of different timing or context for determining the law applicable to the arbitration agreement, different types of arbitration agreement, or different permutations of the parties’ chosen seat and chosen law for their contract. The courts also disagree on the parties’ intentions when ascertaining the implied choice of law or the law with the closest connection, as well as on the applicability of the principles of separability and validation.

This webinar explored the sources and causes of the incessant inconsistency and intricacy in judicial determination of the law governing the arbitration agreement. Alleviating the current uncertainty demands concerted efforts by the parties to expressly specify the law governing their arbitration agreement, as well as by legislatures and arbitral institutions to provide for default choice of law.