Approaches to determining the law governing the arbitration agreement when the proceedings are seated in France (The Kabab-Ji v KFG)

Article summary

Arbitration analysis: In a decision dated 28 September 2022, No 20-20 260, the French Cour de cassation put an end to the French chapter of what became known as the Kabab-Ji, or KFG saga on the law applicable to the arbitration agreement absent an express choice of the parties. The court confirmed once again its long-held rule that the arbitration agreement is independent from the underlying contract and the law chosen to govern said contract, and that the arbitration agreement is governed by substantive rules of international arbitration law (‘règles matérielles’). This ruling takes a diametrically opposite view from the conclusion reached by English courts. As recently as December 2021, the English Supreme Court, faced with the same set of facts, reiterated that the parties’ general choice-of-law clause should be interpreted to indicate that the parties also wished the designated law to govern the arbitration agreement. As a result, and for lack...