The Doctrine of Separability and Governing Law of the Arbitration Clause: Should Pro-arbitration Policy Override Party Autonomy? Is It Time for a Bright Line Rule?

19 Oct 2020 02:00 p.m. - 04:30 p.m. HKT

Courts and tribunals assess the validity of an arbitration clause by reference to the law governing that clause. The question of which law governs an arbitration clause is therefore of fundamental importance and particularly so in Asia. However, while drafters typically include a governing law clause in contracts, the governing law of the arbitration agreement is often not separately specified. This gives rise to the inevitable submission, made by shrewd arbitration counsel drawing on the fiction of separability, that the parties impliedly agreed that another system of law would govern the arbitration clause, often the law of the seat. A slew of judicial decisions in recent years have grappled with this issue in recent years, and these decisions have highlighted the tension between respect for party autonomy and pro-arbitration public policy. This seminar will discuss the approaches taken by the courts across various jurisdictions (including England, Singapore and Hong Kong) and engage the panel and audience in debate on whether the current position taken by the courts of these jurisdictions is desirable and whether more clarity is needed.

If you are interested in attending the session, please contact MunJung Koh at MKoh@mofo.com.



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