Determining the proper law of arbitration agreements

This thesis examines the proper law of arbitration agreements, with particular focus on English law following the enactment of the Arbitration Act 2025. The central problem arises where parties choose the law governing their main contract and the seat of arbitration, but fail expressly to choose the law applicable to the arbitration agreement itself. This omission can become decisive when the validity, existence or scope of the arbitration agreement is challenged before courts or arbitral tribunals, both at the pre-award and post-award stages. The thesis critically evaluates the principal choice-of-law approaches used to determine the law governing arbitration agreements. It first considers the matrix rule, under which the law of the main contract is presumed to govern the arbitration agreement, and argues that this approach is conceptually and practically problematic. It then examines the seat rule, now codified in section 6A of the Arbitration Act 1996 by the Arbitration Act 2025, and argues that although this reform improves certainty, it does not adequately resolve the deeper difficulties created by rigid choice of-law rules. Through analysis of English case law, comparative authorities, statutory materials, international instruments and academic literature, the thesis argues that the validation principle offers a more persuasive solution. Under this principle, where more than one connected law may apply, courts should prefer the law that upholds rather than invalidates the arbitration agreement. The thesis concludes that English law should not abandon validation principle, but should incorporate it as a necessary safety valve to protect party autonomy, promote effectiveness, and support the pro-arbitration objectives of international arbitration.<p></p>

Author dc:creator

• Pooya Fakharian (21043472)

• arbitration agreements

Statement dc:rights

• All rights reserved

Identifier

10779/exe.32769507.v1

OAI identifier oai:identifier

oai:figshare.com:article/32769507