The law of the arbitration agreement—a lacuna in the ICC Arbitration Rules

Table of contents

• What is the background?
• What provisions do other arbitration rules contain?
• What are the practical implications?

Article summary

Arbitration analysis: James Clanchy, independent arbitrator, considers the conflicting decisions of the French and UK supreme courts in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) on the law applicable to the validity of an arbitration agreement and notes that the impasse is a result of a lacuna in the International Chamber of Commerce (ICC) Rules of Arbitration. Other major arbitral rules contain default provisions to identify the law of the arbitration agreement, making it unnecessary to draft bespoke wording in an agreement or to have recourse to the courts on this question. The dichotomy reflects different ideas of international arbitration in Paris and London. It confirms that commercial parties have choices, and it should therefore be welcomed.