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

The following Arbitration practice note Produced in partnership with Charles Spragge of Druces 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 the clause sits 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, or the arbitration clause, will expressly stipulate the law of the arbitration agreement itself, even if some model institutional arbitration clauses encourage this (for example, the model clause published by the Hong Kong International Arbitration Centre (HKIAC)).

However, the arbitration rules chosen for the arbitration may fill this gap by stipulating a law applicable to the arbitration agreement in default of an express choice by the parties. For example, under the London Court of International Arbitration (LCIA) Arbitration Rules 2014, article 16.4, the law applicable

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