ENGLISH SUPREME COURT RULES ON THE PROPER LAW OF THE ARBITRATION AGREEMENT

On 9 October 2020, the English Supreme Court (the “Court”) in Enka Insaat Ve Sanayi AS (“Enka”) v OOO Insurance Company Chubb (“Chubb”)[1] clarified the applicable principles for determining the proper law of an arbitration agreement. The contract in question did not contain a choice of law governing the contract or the arbitration agreement, and the Court held, by majority,[2] that the validity and scope of the arbitration agreement was governed by English law, the law of the seat of the arbitration, being the law most closely connected to the dispute resolution clause. Applying English law, the Court held that the arbitration agreement was valid, and the dispute fell within its scope. Consequently, the anti-suit injunction granted by the Court of Appeal to restrain Chubb from proceeding against Enka in the Russian courts was properly granted.

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Eleanor Scogings

[1] [2020] UKSC 38

[2] Lord Hamblen, Lord Leggatt and Lord Kerr.