Abstract – Recent enforcement proceedings, in England and in France, of an ICC arbitral award rendered in Paris on 11 September 2017 highlight the divergent approaches of the two jurisdictions regarding the law applicable to international arbitration agreements and the risks of contradictory decisions resulting thereto.
Following the conflict of laws method and the criteria set out by Article V(1)(a) of the New York Convention, the English Court of Appeal refused to grant enforcement to the award on the ground that it had not been transferred to the non-signatory respondent in the arbitration under the English lex contractus.
Applying French material rules of international arbitration to the arbitration agreement, the Paris Court of Appeal dismissed the motion for annulment brought against the same award finding that the arbitral tribunal had jurisdiction over the respondent, the arbitration agreement having been extended to it as a result of its involvement in the performance of the contract containing it.
This case shows that the lack of uniformity in the rules governing international arbitration agreements and in the type of judicial control to be undertaken by national courts, can lead to the unfortunate result that an arbitral award which has been considered valid at the place of arbitration will not be enforceable elsewhere.
A reform of the New York Convention and/ or the adoption of an international instrument regulating the material validity of international arbitration agreements would help achieving greater consistency.
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