Revue - Les Cahiers de l'Arbitrage N°3 - 2023 - 81

SPÉCIAL COLLOQUE « PARIS, PLACE D'ARBITRAGE ? »
of the law of the seat as the applicable law for the arbitration agreement, which
happened to be English law.
Thus far we've discussed that if there is an expressed choice of law, that choice
applies. If there's no express choice of law, the court looks for an implied choice
- and the default rule is that the choice of law for the host contract will also apply
to the arbitration agreement, but sometimes not.
Sometimes in English law one does not even have an implied choice of law
to govern the arbitration agreement, whether via the host contract or otherwise. It
happened in a recent case called Enka 4
, which was before the United Kingdom
Supreme Court. In that case, the parties had completely omitted any governing law
clause for both the arbitration agreement and the host contract. There was just no
reference to a governing law at all. In those circumstances, the court falls back on
the general test in English conflicts rules for identifying the applicable law, which
is: what is the law most closely connected with the agreement and the parties and
the subject matter of the contract? And the court has now developed the default
rule for that circumstance, namely, the default rule is that the applicable law is the
law of the seat.
So, to summarise, if there is no express agreement and no implied choice of
law - if instead all we have is just the identification of seat - English law will use
the law of the seat as the applicable law for the arbitration agreement, as that is the
law which is most closely connected with the arbitration agreement.
Now, if I can, I will just identify in thirty seconds or so the slightly parochial
results that have arisen.
In Sulamérica, we had an express choice in the host contract of Brazilian
law; and England was the seat of the arbitration. So you had a choice between
the governing law of the host contract, Brazilian law, and English law as the law
of the seat. What was held to be the law of the arbitration agreement? English
law. The reason for this was that Brazilian law allegedly would have given rise to
uncertainty about the validity of the arbitration agreement.
The next case was Enka where there was no choice of law at all. England was
the seat and again it was held that English law governed the arbitration agreement.
English law is the end result for 2 cases out of 2.
The next case was Kabab-Ji. Kabab-Ji, concerning the enforcement of an
arbitral award - and it held that the same rules apply as I've just described, even
to enforcement decisions. In that case, we had English law governing the host
contract, but French law as the law of the seat. In Sulamerica and Enka, the result
was that the law of the seat applies. In Kabab-Ji, the English court decided that the
applicable law was the law chosen by the parties for the host contract. So, three
times out of three, we've got English law as the applicable law.
That, as an English lawyer, one would conclude, is appropriate because it is
the result reached while applying the rules correctly. Non-English lawyers might
think this is somewhat suspicious!
Carine Dupeyron. Thank you very much, Paul. When we prepared, actually,
I told you I had to deal with that question. I failed to make a disclaimer, which
is that I was counsel for Kout Food Group, so the opposing party to Kabab-Ji,
4. Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38.
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Revue - Les Cahiers de l'Arbitrage N°3 - 2023

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