What Is the Governing Law of theArbitration Agreement? A ComparisonBetween the English and SwedishApproaches

Abstract

Parties rarely make a specific choice of the governing law of the arbitration agreement. Which law is applicable can, however, have a considerable influence over the outcome of the arbitration. This issue was considered in detail by the UK Supreme Court in Enka v. Chubb [2020] UKSC 38, and it was also the subject of a fairly recent case in the Svea Court of Appeal (Judgment of the Svea Court of Appeal, 19 December 2019, Case T 7929-17).
         This chapter compares and contrasts the English and Swedish approaches, which differ markedly from each other. The authors find fault with both approaches and suggest ways in which both could be improved. Meanwhile, it is suggested that parties would avoid potential issues by making clear that their choice of governing law in the main contract also relates to the arbitration agreement itself.