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Nom Nom Nom: Recent Court of Appeal Decision Gives Food for Thought on No Oral Modification (NOM) Clause in Arbitration Dispute

Practical Law Arbitration Blog

13 Feb 2020

Chiraag Shah and Harriet Sassoon authored an article for Thomson Reuters’ Practical Law Arbitration Blog that covers the English Court of Appeal’s recent decision of Kabab-Ji v Kout Food Group, which addressed the question of what law governs an arbitration agreement in the absence of an express provision.

“This case raises two important points in relation to the drafting and performance of contracts,” the authors wrote. “First, from a drafting perspective, where a contract contains an arbitration clause, the judgment underscores the need to state expressly what the governing law of the arbitration law will be, and not assume that the law of the seat of arbitration will automatically govern. Second, and from a performance perspective where an English law governed contract contains a NOM clause, the parties should not assume that an established course of dealing or informal agreement will serve as an enforceable variation or modification of the terms.”

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