Law of the arbitration agreement (England and Wales)
Produced in partnership with Charles Spragge of Druces LLP
Law of the arbitration agreement (England and Wales)

The following Arbitration guidance note Produced in partnership with Charles Spragge of Druces LLP provides comprehensive and up to date legal information covering:

  • Law of the arbitration agreement (England and Wales)
  • The law of the arbitration agreement
  • The doctrine of separability of the arbitration agreement
  • Why does the choice of the law of the arbitration agreement matter?
  • How is the applicable law of the arbitration agreement determined?

The law of the arbitration agreement

The arbitration agreement is most typically evidenced by a clause within a contract, though it may also be drafted in a stand-alone document either at the time of the contract or after the dispute has arisen. However, even where it is an arbitration clause sitting within the main contract, it is autonomous (under what is known as the doctrine of separability). This means, for example, that an arbitral tribunal appointed pursuant to the arbitration agreement has the power to make an award declaring that the underlying contract is invalid without undermining its own authority under the arbitration agreement.

One of the consequences of this doctrine of separability is that the arbitration agreement is not necessarily governed by the same law that applies to the contract as a whole. It is rarely the case that the choice of law clause will expressly stipulate the law of the arbitration agreement itself.

The separate, but related, question of how an arbitral tribunal determines the applicable law of the overall contract is considered in Practice Note: Substantive law of the dispute in arbitration (England and Wales). Note that, to the extent relevant in your arbitration, the EU Regulation on the law applicable to contractual obligations (593/2008) (Rome I) does not apply to arbitration agreements—see Practice Note: Rome I—scope and