Chapter 8 - The Choice Of Law Rules To Govern The Arbitration Agreement - International Arbitration Law And Practice, Third Edition
Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.
Originally from International Arbitration Law and Practice, Third Edition
8.1. Issue Located between the Merits of the Dispute and the Arbitral Proceedings
The arbitration agreement lies between the business relationship, to which it relates, and the arbitral proceedings.
One could say that it is the bridge which takes the parties from their contractual relationship to the arbitral proceedings.
As such it is subject neither to the law that governs the merits of the dispute between the parties, nor to the rules that govern the arbitral proceedings.
8.2. Autonomy of the Arbitration Clause
A further element to be taken into account, in order to identify the law that governs the arbitration agreement in its proper context, is the autonomy of the arbitration agreement from the contract of which it is a part.
A distinction is to be made, at the very start of this analysis, between the arbitration clause and the submission agreement, since the latter is a contract by itself, while the former is a clause of the contract in which it is inserted.
The relationship between the contract and its clause, which deals with arbitration, has been widely debated.
The general rule is that the clauses of a contract are subject to the law that is applicable to the entire contract. This is embodied in the rule accessorium sequitur principale.1
However, since the contents of the arbitration clause deal with the resolution of disputes arising from that contract, this has been viewed as an agreement between the parties dealing with future litigation and not – as do the other clauses – dealing with the business relationships between the parties.
CHAPTER 8: THE CHOICE OF LAW RULES TO GOVERN THE ARBITRATION AGREEMENT
8.1 Issue Placed between the Merits of the Dispute and the Arbitral Proceedings
8.2 Autonomy of the Arbitration Clause
The Main Choice
8.3 The Choice Made by the Parties
8.4 Selection in the Absence of a Choice Made by the Parties
As to the Arbitration Agreement
8.5 Validity and Invalidity of the Arbitration Agreement
As to the Arbitrability
8.6 Law Applicable to Arbitrability
As to the Capacity of the Parties
8.7 Law Applicable to the Capacity of the Parties