CIArb AWARD WRITING TECHNIQUES: SUBSTANTIVE LAW
Party autonomy is the pillar of arbitration. However, the party fails to choose the choice of law apply to the substantive law of the arbitration, this may open up challenge to the substantive law:
[i] Sulamerica v Enesa1WLR102
[ii] Enka v ChubbUKSC38
[iii] Lancashire CC v Municipal MutualQB897:verba ita sunt intelligenda ut res magis valeat quam pereat, contract should be interpreted so that it is valid rather than ineffective.
[iv] Arbitration agreement is a contract; naturally should be governed by the substantive law governing the contract; but by applying the ‘doctrine of severability’, it rarely contradict the substantive law.
[v] The ambit of this exception is unclear. S.6 of the Arbitration (Scotland) Act 2010 create a default rule in favour of the seat being the law governing the arbitration agreement, when the choice of law governing the arbitration agreement is absent.
[vi] Kabab-Ji v Kout FoodEWCACiv6
[vii] Sulamérica v Enesa Engenharia  EWCA Civ 638
[viii] Kabab-Ji v Kout Food Group  EWCA Civ 6
[ix] Enka v ChubbUKSC38
AWARD WRITING BLOG FOR ARBITRATION
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