Lloyd's Maritime and Commercial Law Quarterly


Anthony Kennedy*

The Supreme Court in Enka v Chubb clarified the choice of law rules which help determine the governing law of an arbitration agreement when the law of the contract containing it differs from the law of the arbitral seat. According to that framework, where parties have chosen the law which governs the main contract, that law is presumed also to govern the arbitration agreement. This article identifies, and seeks to provide preliminary answers to, questions surrounding the operation of, and rebuttal of, that presumption, on the basis that such questions are most likely soon to require a judicial answer.


On the face of it, in Enka Instaat Ve Sanayi AS v OOO Insurance Company Chubb,1 the Supreme Court was required to determine whether an anti-suit injunction, restraining the commencement or continuation of proceedings in Russia, should be granted. In substance, however, and as the Supreme Court recognised,2 the “central issue” in the case concerned which “system of national law governs the validity and scope of the arbitration agreement when the law applicable to the contract containing it differs from the law of the seat of the arbitration”.
The Supreme Court sharply divided on the framework which must be employed to address this central issue. Despite this, the majority3 and the minority4 both agreed, in broad terms, with the proposition that, where the parties had chosen the law to govern their main contract (ie, the contract containing the arbitration agreement), this was presumed also to govern the arbitration agreement (hereafter, the “Presumption”). Of course, being a presumption properly so called, a party may rebut it, in the right circumstances.
This article’s purpose is not to offer a perspective on the correctness of the competing overarching choice of law frameworks offered by the majority and the minority and ignores the judgments of both Andrew Baker J at first instance5 and the Court of Appeal,6 which are significantly different from the judgments of the Supreme Court in any case. This

The presumption in Enka v Chubb


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