Law Applicable To Arbitration Agreement

National laws apply to different criteria for the validity and scope of an arbitration agreement, and there is no harmonization at this time. Since the outcome may vary depending on the legislation in force, it is important to determine the applicable law. The concept of “dissociability” from arbitration agreements is associated with this. Most modern national arbitration laws (including England, Wales and Northern Ireland, the Arbitration Act 1996) recognize dissiability, i.e. an agreement to subject disputes to arbitration can be considered a separate agreement for certain purposes, even if it is part of a broader contract. In the absence of this notion of dissociability, any dispute (legitimate or otherwise) over the existence or validity of the principal contract would, by definition, jeopardize the existence of the arbitration agreement it contains, potentially compromising the agreed dispute resolution mechanism, give rise to satellite disputes and could leave the parties in the absence of appropriate means to resolve disputes. The starting point for the answer to this question is to recognize that an arbitration agreement can be separated from the main contract in which it is contained, so that it can remain effective, for example, even if the main contract has not been concluded or has become obsolete (s7 Arbitration Act 1996). This is called the “separation doctrine.” Standard arbitration agreements rarely provide for the legislation in place in the arbitration agreement. But problems can arise if it is not dealt with in the agreement – it is a good practice. The policies contained a clause of Brazilian law and a compromise clause with a seat in London. The explicit choice of the material contract is a strong indication of the parties` intent with respect to the arbitration agreement, unless there are other factors indicating a different conclusion. This may include the terms of the arbitration agreement itself or the consequences on its effectiveness in choosing the appropriate right of the material contract.

While there were powerful factors in the implicit choice of Brazilian law as the law of the arbitration agreement, two important factors attracted attention in the other direction. During the implementation of the FDA and following the restructuring of the company, a dispute had opened as part of the agreement and Kabab initiated arbitration proceedings directly against Kout, not its new subsidiary Al Homaizi, although the latter remained the licensee in question. The FDA contained an arbitration agreement specifying the paris arbitration headquarters. A Paris-based arbitration tribunal applied French law to the question of whether the arbitration agreement had been entered into under the arbitration agreement and found that it was based on the conduct of the parties.

Posted Friday, December 11th, 2020 at 1:08 pm
Filed Under Category: Uncategorized
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