NEWSLETTER-2020-metin

248 NEWSLETTER 2020 Enka v Chubb: Law Applicable to the Arbitration Agreement* Att. Melissa Balıkçı Sezen Introduction As put by Moore-Bick LJ in Sulamerica , “ It is common for par- ties to make an express choice of law to govern their contract, but unusual for them to make an express choice of the law to govern any arbitration agreement contained within it ” 1 . As a result, the determi- nation of the law applicable to the arbitration agreement has been an issue that has divided courts and commentators all around the world 2 . The Supreme Court of the United Kingdom handed down its judgment in Enka v Chubb on 9 October 2020 3 , in which it clarified the correct approach to ascertaining the governing law of an arbitration agree- ment under English law. Background The background of the dispute brought before the English courts related to damage caused in a power plant in Russia. PJSC Unipro (“Unipro”) had engaged with CJSC Energoproekt for the design and construction of a power plant in Russia. Such plant was insured by OOO Insurance Company Chubb (“Chubb Russia”). * Article of December, 2020 1 Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638 at para 11. 2 For general explanations with regards to the law applicable to arbitration agree- ments, please refer to Işık, Fatih, “ The Applicable Law to the Substance of an Arbitration Agreement, ” Erdem&Erdem Newsletter, October 2013, http://www. erdem-erdem.av.tr/publications/law-post/the-applicable-law-to-the-substance-of- an-arbitration-agreement/. 3 Enka Insaat Ve Sanayi AS (Respondent) v OOO Insurance Company Chubb (Ap - pellant) [2020] UKSC 38, https://www.bailii.org/uk/cases/UKSC/2020/38.html