Going Local for perfection: How do the English courts give defective arbitration agreements the maximum effect?

Abstract

In the absence of parties' choice of law governing an arbitration agreement as an integral part of the main contract, the determination of the proper law of an arbitration agreement can vary from the law governing the main contract, the law of the proceedings, the law of the seat or another system of national law. This article uses English case law including Enka and Kabab-Ji to highlights that using the application of dépeçage and business efficacy under common law and the choice of the law of the seat chosen for its the closest and most real connection to the arbitration agreement, the English courts can achieve what transnational validation principle intends to do, but with a yardstick.