The View from Europe: What's New in European Arbitration - Dispute Resolution Journal - Vol. 68, No. 4
Stephan Wilske is a Partner in the dispute resolution division of Gleiss Lutz in Stuttgart, Germany and heads the firm’s International Arbitration Focus Group. He regularly acts as counsel and as an arbitrator in national and international arbitration proceedings. Isabelle Michou is a Partner in the International Arbitration Group of Herbert Smith Freehills in Paris, France. She regularly acts as an advocate in ad hoc and administered arbitration under the rules of the major arbitral institutions and the UNCITRAL Arbitration Rules. Todd J. Fox is a senior associate in the dispute resolution division of Gleiss Lutz in Stuttgart, Germany and regularly acts as counsel in international arbitration proceedings. Gerold Zeiler is a Partner in the dispute resolution practice of Schoenherr in Vienna, Austria and regularly acts as arbitrator and counsel. He is a guest contributor to this issue.
Originally from Dispute Resolution Journal
RECENT DECISIONS BY NATIONAL COURTS
England. In a decision from December 19, 2013 in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v. VSC Steel Company Ltd  EWHC 4071 (Comm), the English High Court has further addressed the approach taken by English courts for determining the governing law of an arbitration agreement.
A dispute arose between Habas and VSC in relation to a contract for the sale of steel. The parties’ agreement did not set out the applicable law to the substantive contract or to the arbitration agreement, but provided for arbitration seated in London.
Habas brought proceedings in the High Court under section 67 of the English Arbitration Act 1996 to vacate a London arbitral award made between the parties, on the basis that the arbitral tribunal erred in finding that there was a binding arbitration agreement. Habas argued that: (i) there was no binding consensus on the terms of the arbitration agreement; and (ii) Habas’ agents (which had concluded the contract on its behalf) did not have actual or ostensible authority to conclude the London arbitration agreement.
The High Court quickly found that a binding consensus existed in relation to the terms of the arbitration agreement and further held that the applicable law of the putative arbitration agreement must be examined before any question of the validity of the arbitration agreement should be considered.