2020 in Review: Proper Law of Arbitration Agreement

Tóm tắt bài của Kluwer Arbitration Blog và thông tin về trọng tài ở Việt Nam

Kluwer Arbitration Blog (có thể đăng ký newsletter) điểm lại các bài liên quan đến luật áp dụng cho thỏa thuận trọng tài. Mấy ý chính là:

Tell the tale

2020 saw important case law developments concerning the proper law of arbitration agreements, where the seat of the arbitration is in a different jurisdiction from the governing law of the main contract, particularly in the UK. However, various jurisdictions have adopted different approaches to this issue. It remains to be seen which jurisdictions will follow the latest UK jurisprudence.

UK approach and three questions to ask

In English courts, the applicable law to the arbitration agreement is determined by applying the three-stage test required by English common law conflicts of law rules for determining the law governing contractual obligations (as the Rome I Regulation does not apply to arbitration agreements), namely

(i) Is there an express choice of law?

The express choice of law in the main contract may amount to an express choice of law of the arbitration agreement, if the construction of the contract so mandates (essentially “This Agreement” clauses, which means that the law agreed for the main contract covers all clauses, including the arbitration clause)

(ii) If not, is there an implied choice of law?

[P]revalence should be given to the parties’ intention when agreeing on the law of the main contract; where the parties have (expressly or impliedly) chosen the law applicable to the main agreement, it would normally govern the arbitration agreement as an implied choice.

(iii) If not, with what system of law does the arbitration agreement have its closest and most real connection?

[T]he arbitration agreement is most closely connected with the law of the seat if the parties had chosen one, as, inter alia, this is the most used connecting factor and it is also consistent with international law and legislative policy, such as the New York Convention.

Singapore courts

By applying the three-stage analysis, the Court of Appeal expressly endorsed the approach […] that in the absence of an express choice of the proper law of the arbitration agreement, the implied choice of law should presumptively be the proper law of the underlying contract.

Venture North Law cũng có bài thú vị về thỏa thuận trọng tài trong hợp đồng giữa bên Việt Nam và bên nước ngoài: Points To Consider In An Arbitration Clause For A Vietnamese Party In A Contract With A Foreign Party. Liên quan đến luật áp dụng, có đoạn:

The arbitration clause in a contract is usually regarded as a separate arbitration agreement. Sometimes, it is not clear if the governing law of the contract will also be the governing law of the arbitration agreement. For example, if the governing law of the contract is Vietnamese law and the contract is subject to foreign arbitration, then there are strong Arguments that the governing law of the arbitration clause is the law of the country where the arbitration is to be conducted. Therefore. it may be useful to specify the governing law of the arbitration agreement in the arbitration clause itself.

Nhân tiện, gần đây Ls Trinh Nguyễn có nhờ nhắn với mọi người thông tin liên quan đến khóa học ngắn hạn về trọng tài:

In the upcoming March and April, Vietnam Academy for Arbitration (VAArb) proudly presents its first online training course “International Arbitration - Essential knowledge & Skills for Arbitration Users”. This training course will be delivered in two parts: Part I-Arbitration planning and Part II-Arbitration proceedings which could be enrolled separately or together.

Cập nhật sau khi đăng bài: German Federal Court of Justice applies CISG to validity of the arbitration agreement:

Another matter of debate is whether the CISG can govern the arbitration agreement. The matter arises – in particular – if both parties to the arbitration agreement are from CISG contracting states. Most courts and scholars argue that the CISG can govern the formation of the arbitration agreement. Articles 19 and 81 CISG speak in favour of this position. Art. 19 (3) CISG states that adding dispute settlement terms to an offer constitutes a material alteration. Similarly, Art. 81 (1) sent. 2 CISG stress that dispute settlement agreements are not impacted by an avoidance of the contract. This shows that the CISG expressly deals with dispute resolution clauses. The minority view argues that the CISG does not deal with the formation of the arbitration agreement because Art. 4 CISG limits the scope of the CISG to the formation of sale contracts.

and what the German court thought was:

In spite of the wording of Art. 4 CISG (“[t]his Convention governs only the formation of the contract of sale“), the BGH applied the CISG also to the question whether the arbitration agreement has been formed.