NEWSLETTER-2017

159 ARBITRATION LAW awards consider the law applicable to the underlying contract as the law applicable to the arbitration agreement. This point of view is confirmed in earlier awards of the ICC. For instance, in 1977, an ICC tribunal stated that the choice of law to be applied to the underlying contract should also apply to the arbitra- tion agreement 2 : “ It is accepted by the majority that unless there is a special provision, the choice of law to be applied to the underlying contract also regulates the arbitration clause. ” Such point of view is followed in some recent court decisions. Where no choice of law is made for the arbitration agreement by the parties, the Hamburg Court of Appeal decided in 2003 that the arbitra- tion agreement shall be governed by the law applicable to the underly- ing contract 3 . The Court of Appeal in Thüringen, Germany, ruled on 13 January 2011 that the choice of law for the underlying contract was an implicit choice of law for the arbitration clause 4 : “ Since the main con- tract and the arbitration agreement are separate contracts that must be examined separately, it is first necessary to clarify the question of the law applicable to the arbitration agreement. The contract does not contain an express provision on this point. The main contract contains, however, a choice of law (the law to be applied is the law of the Prin- cipality of Liechtenstein). This circumstance is a strong indication that the parties also intended to agree on a choice of law for the arbitration agreement (implied choice of law [konkludente Rechtswahl]), and the Court so assumes. The courts of appeal in Dresden, Celle, Bremen and Berlin also held the same (…) ”. 2 ICC Award no. 2626, Collection of ICC Arbitral Awards (“ Collection ”), Volume I, p. 316 et seq. Please see: ICC Award no. 6379, XVII Yearbook of Commercial Arbitration (“ YBCA ”) 1992, p. 212-220; ICC Award no. 6840, Collection III, p. 467 et seq,; NOFOTA award dated 5 September 1977, IV YBCA 1979, p. 218- 220; ICC Award no. 7047, 13 ASA Bulletin 1995, p. 301-357. 3 Please see: XXX YBCA 2005, p. 509-523. For more information regarding the topic please see: the Hamburg Court of First Instance decision dated 16 March 1977 (III YBCA 1978, p. 274-275) and the Hamburg Court of Appeal decision dated 22 September 1978 (V YBCA 1980, p. 262-263) upon appeal against this decision. 4 Please see: XXXVII YBCA 2012, p. 220-222.