NEWSLETTER-2020-metin

250 NEWSLETTER 2020 Decision of the Court of Appeal The appeal to the Court of Appeal was filed against the decision of the High Court rendered by Mr JusticeAndrew Baker on 20 Decem- ber 2019. In its decision, the Court of Appeal overturned the judge’s decision and ruled that in the absence of a choice of law governing the arbitration agreement, “ The general rule should be that the AA [arbitration agreement] law is the curial law, as a matter of implied choice, subject only to any particular features of the case demonstrat- ing powerful reasons to the contrary ” 6 . The decision of the Court of Appeal was then appealed by Chubb Russia. Decision of the Supreme Court The Supreme Court dismissed the appeal by a majority. It is important to note that the reasoning in reaching the same conclusion was significantly different. The Supreme Court firstly determined that, where an English court must decide which system of law governs an arbitration agreement, since the scope of the Rome I Regulation ex- cludes arbitration agreements, it should apply the English conflicts of law rules 7 . According to common law rules, the law applicable to the arbitra- tion agreement will be: (i) The law expressly or impliedly chosen by the parties; (ii) In the absence of such choice, the system of law most closely connected to the arbitration agreement. The court found that, where there is an express or implied choice of law governing the contract, this shall also govern the arbitration agreement. Differing from the findings of the decision of the Court of Appeal, the Supreme Court held that “ The separability principle does not require that an arbitration agreement should be treated as a sepa- rate agreement for the purpose of determining its governing law ” 8 . 6 Para 99 of the decision of the Court of Appeal https://www.bailii.org/ew/cases/ EWCA/Civ/2020/574.html 7 Paras 25-28 of Enka v Chubb. 8 Para 41 of Enka v Chubb.