The Court held that the principle of the dissociability of a provision of the law in the main contract did not prevent him from applying for the arbitration agreement. In other words, all clauses of the contract, including the compromise clause, are subject to provisions of the main contract. He disagreed that the parties did not specifically choose legislation to regulate their arbitration agreement. The majority found that the parties` contract did not include a legal choice to govern the contract and found that the validity and scope of the arbitration agreement must be determined by the “following link”22.22 In its decision, the Supreme Court referred to an important form of English law that assumes that the choice of contract normally applies to an arbitration agreement in the contract. Recently, the Court of Appeal interpreted a clause of a contract in such a way that all contractual terms are governed by English law, including a compromise clause providing for arbitration proceedings in France. In a 2012 case, the Court of Appeal stated that “it is customary for the parties to make an explicit choice to settle their contract, but that they are in the habit of making an explicit choice of law in order to settle any arbitration agreement contained in it; and if they did not, the natural conclusion is that they intended to choose the right just to regulate the material contract also to communicate the agreement.” The judgment report tells us that the development of the arbitration clause is extremely important. The best solution would be to mention three separate legislative systems in the arbitration agreement, that is, the law that governs the main contract, the law that governs the arbitration agreement and the choice of the seat of arbitration. However, in most cases, the right governing the arbitration agreement is not mentioned and, in such scenarios, in addition to the regulation of the parties` material rights and obligations, the main contract law governs the interpretation and validity of the arbitration agreement and must therefore be chosen after careful consideration. First, by giving primacy to the law of the main contract over the right of the seat, English courts will now be required to investigate the right of arbitration of other countries, to a greater extent than before, in order to determine the scope of an arbitration agreement in a regulated foreign treaty.
This will likely result in complexity if the English courts, which are challenged by an English court or by enforcement, are challenged. However, if the parties have not chosen legislation to settle the main contract (or arbitration clause), then the test of the following link will apply. This test would generally lead to an application of the law of siege [118-146] The Court of Appeal of England overturned the High Court`s decision and found that there was a strong presumption that the parties had chosen the right of the seat as the right applicable to arbitration, unless there are “strong counter-factors” in the parties` relations or in the circumstances of the case.3 In the absence of an explicit choice , the arbitration agreement was governed by English law as an implicit choice issue. Accordingly, the Court of Appeal found that Chubb Russia`s appeal fell within the scope of the clause and that an injunction should be issued to deter Chubb Russia from pursuing the Russian claim. With respect to the facts of the case in question, the Supreme Court found that, in the main contract, the parties had not made an explicit or tacit choice of law. Accordingly, the Court has decided, applying the presumption discussed above, that the arbitration agreement is governed by English law as the right of the seat of arbitration.