CONFLICT OF APPLICABLE LAW:

By Shreya
A MULTI JURISDICTIONAL Sreesankar
ANALYSIS
OVERVIEW
 Introduction
English Law: The traditional approach
Singapore Law: The modern approach
Indian Law: The convergence
Conclusion
INTRODUCTION
International Commercial Arbitration- foundation of
dispute resolution in international transactions
Doctrine of Party Anonymity- freedom of parties to
construct their contractual relationship
Doctrine of Seperability: arbitration clauses v.
arbitration agreement
Complex problem- what is the proper law applicable
to international arbitration?
 ENGLISH LAW:
THE TRADITIONAL
APPROACH
3 STEP PROPER LAW
TEST
• Law expressly chosen by parties
I
• In the absence of an express choice, a
contract is governed by the law impliedly
II chosen by the parties
• In the absence of party choice, the system
of law with which it has its most real and
III substantial connection
SUL AMERICA V. ENESA
ENGENHARIA
(2012) EWCA CIV. 638
• Parties to an insurance contract had chosen Brazilian law to
govern the contract and had also agreed that disputes were
FACTS to be referred to arbitration, with England as the seat of
arbitration
• Held that the arbitration clause was governed by English
law and was binding on the parties. Accordingly, the appeal
RATIO against the grant of an anti-suit injunction was dismissed.

REASONIN
G
SINGAPOREAN LAW:
THE MODERN
APPROACH
 FIRST LINK INVESTMENT CORP V. GT
PAYMENT PTE. LTD.
[2014] SGHCR 12
• Notion of Seperability
• The arbitration relationship normally only comes into play
when the substantive relationship has already
HELD irretrievably broken down, there is no natural implication
that commercial parties would want the law governing
the substantive contract also to govern the arbitration
clause.
• When commercial relationships break down and parties
become involved in international arbitration, the parties’
desire for neutrality comes to the fore; as a result, the
CRITIQ law governing the substantive contract takes a backseat
UE and primacy should be accorded to the neutral law
selected by the parties to govern their agreed method of
dispute resolution
BNA V. BNB
[2019] SGCA 84
Preferred the position in Sul America over that in First Link
Differentiated the notion that the law chosen to govern
the matrix contract is a strong indicator of the law
governing the arbitration clause within it.
Held that the commercial intent of keeping the seat at a
neutral territory has to be kept in consideration.
Overruled BCY v. BCZ and provided authoritative
guidance on the applicable principles in determining the
proper law of an arbitration agreement
INDIAN LAW
ENERCON INDIA LTD. V.
ENERCON GMBH
Conflict between seat and venue addressed
Held:
1. The courts of the seat of arbitration have the exclusive
jurisdiction to exercise supervisory powers over the
arbitration process. The courts of the venue of
arbitration cannot have concurrent jurisdiction in this
regard.
2. Venue refers solely to the geographic location of
proceedings and does not determine the jurisdiction of
courts
CONCLUSION
The dearth of provisions on applicable law is
not too surprising, as for reasons that have
always escaped most drafting guides and
checklists are silent on the issue. The need for
a consistent approach on the law governing
the arbitration agreement in absence of an
express choice by the parties is thus very real.
THANK YOU