(4) An arbitration agreement is written if it is contained in – The court rejected the defendant`s argument, noting that clause 7.7 does not prove an explicit promise between the plaintiff and the defendant (neither of whom was a party to the purchase agreement) to participate in the AAA process before he was heard by the English court for breach of the exclusivity agreement. Another factor weighed against the defendants was that, in the letter preceding the action, they had made an offer to stay the AAA proceedings in favour of the English litigation and which the plaintiff had accepted. The importance of this situation was recently highlighted in Enka v. Chubb, which has been reviewed by the Supreme Court of the United Kingdom. Our global arbitration team looked at how the case would be handled before English judges in this case in other jurisdictions. The case law supports an approach consistent with that of the Supreme Court of the United Kingdom in Enka v. Chubb that the contract, including the arbitration clause, must first be examined to determine whether the parties have expressly or implicitly entered into an agreement on both the correct contract law and the applicable law of the arbitration agreement. Only if no agreement can be reached does the choice of registered office result in the law of that place being the applicable law of the arbitration agreement. It is not permissible to examine the arbitration agreement in isolation and the circumstances surrounding it, including the law underlying the substantive agreement, should be taken into account. The Hong Kong courts have therefore expressly rejected the application of the principle of severability according to which an arbitration agreement must be regarded as a different and distinct agreement.
On the one hand, it seems surprising that the Ninth District`s “Not For Publication” statement did not find a peaceful grave, but was dragged into the sunlight by the Supreme Court. On the other hand, the Supreme Court can now tell us whether an agreement to approve a class arbitration can be “reached” by a court without obviously considering the need for a plausible gathering of opinions, or whether an explicit agreement to approve a class arbitration is necessary, since the Supreme Court is aware of the very important differences between “class arbitration” and is concerned about normal bilateral arbitration as provided by the FAA. The plaintiff, an English financial services company, and the defendants, a group of affiliates, were parties to an exclusivity agreement. That agreement was part of a series of documents relating to a contract of sale between third parties. Clause 7.7 of the Purchase Agreement provided that all disputes relating to the Purchase Agreement would be “first submitted to non-binding arbitration” in Florida under the American Arbitration Association (AAA) Commercial Arbitration Rules. There may be circumstances in which the court cannot determine a choice of law on the basis of the agreements of the parties and the circumstances surrounding them, in which case it may conclude that the court that has the closest connection with the arbitration agreement is the applicable law. It is likely that an Australian court would find the UK Supreme Court`s decision in Enka v. Chubb and would conclude that the law of the seat is the default position.
At the very least, an Australian court would probably consider the seat of the arbitration to be highly relevant. You will probably be surprised to learn that this is an issue that has irritated courts and commentators in England and around the world for many years. On the one hand, there are authorities who say that the law chosen for the main contract should also regulate the arbitration clause. On the other hand, there are authorities who say that it should be the law of the chosen arbitrator. Dubai-based Mark Raymont and Melissa McLaren said the position in the UAE depended on whether arbitration was subject to “onshore” law or in the “offshore” free zones, namely the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM). The minority would have limited the application of the principle of validation to cases where the application of the main contract law would invalidate the arbitration clause. The majority opinion extends the principle to cases where the application of the main contract law would “seriously prejudice” the arbitration clause – for example, in cases where the application of the law of the main contract would limit the interpretation of the arbitration clause. These commentators consider that the analyses and conclusions provided for in the case-law are incorrect, as they are based on earlier decisions of English law given before the adoption of the English Arbitration Act. However, you agree that if there is no express or implied choice of law under the Agreement, but the arbitration agreement identifies – expressly or implicitly – a place of arbitration, a Hong Kong court should conclude that the arbitration agreement is governed by the law of the place of arbitration. This is consistent with the decision embedded in Enka v. Chubb. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such that this arbitration clause forms part of the contract Today, this division has generally been exceeded in national law and both forms of arbitration agreements are generally enforceable.
For example, article 3 of the above-mentioned Brazilian Arbitration Law now states: “Interested parties may submit the settlement of their disputes to an arbitral tribunal on the basis of an arbitration agreement, which may take the form of either a special agreement or a submission to arbitration (act of arbitration).  This distinction was not changed in the Arbitration Act 2015. The first, and best-known, form is an arbitration clause, which is included in the main contract between the parties and anticipates the settlement of all potential disputes by arbitration. On April 30, 2018, the U.S. Supreme Court granted the certiorari review of an unpublished Ninth District decision in Varela v. .