The implied choice of the proper law of the arbitration agreement under the common law

Abstract

In order to identify the proper law of the arbitration agreement, common law provides that, in the absence of an express choice, it must be applied the law impliedly chosen by the parties. In relation to arbitration clauses contained in contracts, the Court of Appeal established in the Sul América case the presumption that the law expressly chosen to govern the contract is prima facie considered the impliedly chosen to govern the arbitration clause. Recently, amending this doctrine, in the Enka case the same Court of Appeal has estimated that the express designation of a seat prima facie amounts to the implied choice of its law as the proper law of the arbitration clause.