Revue - Les Cahiers de l'Arbitrage N°3 - 2023 - 82

SORBONNE ARBITRAGE, 28 MARS 2023 (PARIS ARBITRATION WEEK)
in the French case. And I will not say anything, but I will probably align myself
with criticism against that decision.
But coming back to what you said, when I went through these cases, Sulamerica
and Enka, etc., well, my impression was that, in fact, the criteria were just the
judges' criteria. So there was a level of discretion, and thus uncertainty, depending
on who was going to judge your case. You will have different criteria applying:
it might be that the law applicable to the arbitration agreement shall be the most
favourable to arbitration or the one that has the closest connection. Is that a fair
view? As you said, the choice of the relevant criteria is driven by the objective,
which is maybe applying English law in the end?
Paul Key. It is certainly true that the English courts, all of them, from the lowest
to the highest, would rightly or wrongly regard themselves as promoting and in
favour of arbitration. So the first two cases - Sulamérica and Enka - were cases
where the actual underlying court application was an application to stop foreign
court proceedings for an alleged breach of the arbitration agreement. And, so what
the English courts ultimately said was: we uphold the arbitration agreement and
grant an injunction to stop the foreign court proceedings. So what they were trying
to do, as they saw it, was to give a result which upheld the parties' intention
as evidenced in a piece of paper which they had signed and said " we agree to
arbitrate these disputes " . The courts were looking for some source, some applicable
law, which would give effect to that apparent agreement. And that's particularly
the case in Sulamérica because, if one just read the normal statements of principle,
one would think that the starting point is Brazilian law as the governing law for
the arbitration agreement because it is the law governing the host contract chosen
by the parties. The court had to get round that issue by saying, well, there is an
exception to that general starting point. So the courts are definitely, as they see it,
trying to promote arbitration.
There is a strange aspect of Kabab-Ji which people often don't think about
or mention because it doesn't really feature in the courts. But if one recalls what
happened in the underlying arbitration, obviously there was a question to whether
there was a valid arbitration agreement. But once the tribunal got over that hurdle
(once they concluded there was a valid arbitration agreement), they needed to
apply a governing law to the merits of the dispute. And they applied English law.
And for an English lawyer, there is just no way it could be English law which
governs the merits of the dispute. To put it another way, applying English law,
there is no way that they could be any rights and obligations formed between
the claimant and the respondent. And it may be that underlying what the English
court did in Kabab-Ji was a reflection of their horror at what had happened in the
arbitration in terms of the application by the tribunal of English law to the merits
of the dispute. And the English court did it the best way they could, which was to
say there was no arbitration agreement. As English lawyers see matters, what the
Supreme Court did in Kabab-Ji was not any groundbreaking new development in
English conflicts rules. It is fully consistent with their earlier tests as lay down.
Carine Dupeyron. I have another question for you, which is actually whether
in the reform of the 1986 English Arbitration Act, and amongst the debates, there
is something that is going to be stated, or some kind of criteria or tests that could
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The Paris Journal of International Arbitration 2023‑3
Revue - Les Cahiers de l'Arbitrage N°3 - 2023

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