The Proper Law of the Arbitration Clause: A Challenge to the Prevailing Orthodoxy

It has recently been established, at least before English courts, that where the parties have failed to set out the proper law of the arbitration clause, this is necessarily, and by mandatory default, the law of the seat of the arbitration. The justification for this assumption is that if this were not so, then the parties may have access to two distinct curial laws. This assumption in favor of the law of the seat, however, goes against the ordinary assumption that in the absence of a contrary provision by the parties, the law applicable to the arbitration clause will follow the proper law of the contract. Moreover, the justification offered by the courts is pointless in circumstances where the parties in fact designate the law governing the arbitration clause which is contrary to the law of the seat. Ultimately, it is up to the arbitrators and the courts of the lex arbitri to decide on any conflicts of civil procedure law that may arise.