The Law Applicable to International Arbitration Agreements: the English Court of Appeal Departs from Sulamérica

It is not uncommon for an international arbitration agreement to omit an express choice of law, albeit that the main contract in which the arbitration clause is situated will usually include an express choice of law. Within English law the approach adopted in the search for an implied choice of law to govern the arbitration agreement has given rise to conflicting case law and divergent views amongst commentators. When considering an implied choice of law should the starting presumption be that the arbitration agreement is governed by the law of the main contract, or should it be the law of the seat? For the best part of a decade, the answer according to Sulamérica Cia Nacional de Seguros SA v Enesa Engelharia SA was the former. The English Court of Appeal in Enka Insaat Ve Sanayi A.S. v OOO “Insurance Company Chubb” and others, has now said it is the latter. Chubb has since been granted permission to appeal to the UK Supreme Court, and so more is to follow in relation to this aspect of arbitration law.