Resolving the Difficulties of Determining What Law Governs the Validity of an Arbitration Agreement – A Critique Contra Omnes – Vol. 28 No. 3

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Author: Myron N. R. Phua*

Published: December 2017

United States
Interpretation of the Award
Arbitral Process
Existence and Validity of Agreement to Arbitrate
Contents of Arbitration Agreement
Applicable Law
Responsibility of the Parties

Description; This paper undertakes a critical analysis of recent developments in Singapore and England on the subject of determining what law governs the substantive validity of an arbitration agreement (“LGAA”), and compares them with the approaches of other leading jurisdictions applying “transnational principles.” In doing so, I shall argue that all of the existing approaches are less than ideal in their own ways, and shall proffer a solution promotive of the policies and purposes underlying this area of doctrine.

The paper proceeds in two parts. First, I criticize the existing approaches for not optimally serving what I identify to be the four policies which a rule determining LGAA should serve: (1) vindicating party intent, (2) securing arbitral efficacy; (3) accounting for State interests (in light of “contacts” with States); and (4) securing transactional certainty. Namely, I shall contend that the “implied choice” approaches adopted in England, Singapore, and the American Restatement, while seemingly acknowledging the primacy of the parties’ intended choice of law, subvert that very credo by proceeding to construct it artificially through the use of inaccurate presumptions and rules. By comparison, approaches employing “transnational principles” such as that adopted in modern American federal practice, or in France, as with Gary Born’s advocacy of a “Validation Principle,” are criticizable as unjustifiably prizing a single policy over all else. After reckoning all of these approaches to be unsatisfactory, I shall then proffer a solution which I argue best synthesizes and promotes the four policies identified.

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*B.C.L. candidate (Oxon.). J.D. (Columbia); LL.B. (King’s College London). I thank Professor Robert Smit for his invaluable guidance and feedback in relation to this article. All errors are mine.