By Priyamvada Mishra and Vinita Solanki, National Law Institute University, Bhopal
- Introduction
International economic cooperation has increased exponentially in the past decade and has resulted in a number of cross border contractual disputes and complex questions of law such as choice of governing law, jurisdiction of the chosen forum, consequences of ambiguity of contractual provision et cetera. Litigation is not a viable alternative for dispute settlement on the international stage due to the costs involved.
Arbitration, sometimes preceded by some non-adjudicatory method of dispute resolution, has emerged as the popular method due to its well-known advantages. Although it is worth reiterating that it gives parties the leeway to appoint mutually agreeable arbitrators who may be experts in the field of the contract or the said dispute and allows further cooperation between the parties by preventing court intervention. It is also easier to enforce arbitral awards as opposed to judgments rendered by the courts across international boundaries by virtue of their being party to certain international convention and treaties. However, a number of objections have been raised to the jurisdiction of the arbitral tribunal constituted under the arbitration agreement (hereinafter ‘the Agreement’) entered into by parties arising out of the lacunae in drafting of such agreements.
Owing to the foregoing reasons and existence of extensive research on jurisdictional issues of courts, this essay shall restrict itself to four of the most important jurisdictional issues in arbitration of international contracts with no intention to elaborate on international contracts themselves, the method of determining arbitrability used by different fora or other related topics.
The essay is divided into six parts comprising an introduction, the issues of existence and validity, scope of the Agreement, arbitrability, seat of arbitration and conclusion. It discusses the questions of appropriateness of court determination of validity of arbitration agreement, self-determination of jurisdiction and construction of the Agreement by the arbitral tribunal, connotation of ‘arbitrability’, liberal approach to objective arbitrability and proper law as affected by the seat.
- Existence and Validity of Arbitration Agreement
Consent and intention of the parties is of utmost importance in the formation of a valid arbitration agreement and its existence may be challenged in the absence of consent. Parties also challenge existence of the Agreement to avoid arbitration but an unequivocal and valid clause will prevent or other legal requirement may prevent them from doing so[2]. The identity of the parties is also fundamental to the arbitration agreement.[3]
A number of factors affect the formal and substantive validity of arbitration agreement. Substantive validity is vitiated by misrepresentation, the dissolution of the chosen institution, ambiguity, mistakes regarding the relationship between the arbitrator and parties,[4] the insolvency of the parties, the exclusion of statutory rights and remedies and the lack of arbitrability.
Formal validity of international arbitration agreement includes “written requirement, signature or exchange” of written communication. Article II (1), II (2) of New York Convention, 1958, Article VII (2) of UNCITRAL Model Law on International Commercial Arbitration and Article 178(1) of Swiss Law on Private International Law are provisions that deal with ‘agreement in writing’. Even as Courts differ on the measure of strictness with which to implement the requirements for written agreements as laid down in the New York Convention, S. 5 of English Arbitration Act, 1996 recognizes categories of oral arbitration agreements.
2.1.Kompetenz-Kompetenz rule
Lex loci arbitri grants the arbitral tribunal the necessary competence to decide on its own jurisdiction, which is widely accepted as the kompetenz-kompetenz rule.[5] Legislations such as the Indian Arbitration and Conciliation Act 1996, the English Arbitration Act 1996, Commercial Arbitration Rules of American Arbitration Association and ICC Arbitration Rules expressly confer upon the arbitral tribunal the power to rule on its own jurisdiction, including any objections to the existence, scope or validity of the arbitration agreement.
Traditionally, however, the courts have decided objections to the existence of a valid arbitration agreement.[6] The U.S. Supreme Court in John Wiley & Sons, Inc. v Livingston[7] explained – “the duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the arbitration agreement exists and is valid.” Likewise, in Kaye v Nu Skin UK Ltd.,[8] the question of validity was discussed by the Courts instead of the arbitral tribunal. Allianz Spa and anr v West Tankers Inc.[9] has illustrated that despite the existence of kompetenz -kompetenz rule; it has not been implemented in its real form. In the said case the seat of arbitration was London, however, the Italian court ruled on its jurisdiction and the validity of the arbitration agreement applying Italian law on a challenge by West Tankers.
Courts will usually grant a stay of proceedings[10] in favour of arbitration unless the arbitration agreement is null and void, inoperative or incapable of being performed.[11] For instance, in JSC BTA Bank v Ablyazov and ors.,[12] the Court stayed the proceedings against the defendant in the absence of ‘nullity’ or ‘voidability’ of arbitration agreement.
As per Indian law, the courts are under an obligation to determine whether the agreement is valid, operative and capable of being performed at the threshold of arbitration.[13] Following the precedent of SBP Co v Patel Engineering[14] the court in Chloro Controls India (P) Ltd v Severn Trent Water Purification Inc[15] held that arbitral tribunal cannot review the Court’s decision on the validity of the arbitration agreement.
However, in the recent decision of Bio Power Limited v Dalkia India Pvt. Ltd.,[16] the court held that the arbitral tribunal has allowed it to rule upon the existence and validity of the arbitration clause independent of the courts.
In Apollo Computer, Inc. v Berg,[17] there was a binding arbitration agreement in which the disputes had to be decided according to the arbitration rules of the ICC. The contract conferred upon the arbitrator jurisdiction to determine the validity of the Agreement.
Judicial intervention in the arbitral process introduces litigation cost; increases time consumed and discourages arbitral remedies. Courts should compel specific performance of arbitration agreement in case a valid agreement exists. If a court intervenes at the very threshold of arbitral proceedings, it vitiates the latter’s purpose.
2.2.Doctrine of Separability
The principle of treating the arbitration agreement as being independent from the parent contract was established in the landmark decision in Fiona Trust and Holding Corp v Privalov.[18] It is established that the arbitration agreement must be treated as a “distinct agreement” and can be rendered void or voidable only on grounds which relate directly to the arbitration agreement and that it shall not be affected by a possible invalidity of the main contract. This was reflected in Harbour Assurance Co. (UK) Ltd. v Kansa General International Insurance Co Ltd.,[19] wherein, the Court of Appeal held that although the underlying contract was illegal the arbitration clause could still survive as the illegality of the underlying contract did not impeach the arbitration agreement. However, where a contract is void ab initio, the arbitration agreement shall also be considered non-existent.[20] Subsequently, the courts ruled in Buckeye Check Cashing v Cardegna[21] that a challenge to the validity of the main contract should be made before arbitrators in face of a valid and enforceable arbitration agreement.
- Scope of Arbitration Agreement
Once the existence and validity of the arbitration agreement has
been conclusively determined, the parties may object to the arbitrability of the said dispute or to it being within the ‘scope’ of the arbitration agreement, which refers to the subject matter it includes within its circumference.
Arbitration being a consensual mode of dispute resolution, party autonomy is of primary importance for determining the scope of the Agreement. It encompasses two elements: free consent and intention of the parties. Parties should either expressly consent to subjection of the substance of the said dispute to arbitration, at least have intended to do so, or it must have been in the contemplation of both parties that such a dispute may arise and may, subsequently, be settled by arbitration. Also, it is important that such consent is given freely as proof of corruption leads to a challenge of the Agreement itself.
A three part inquiry was laid down for proper construction of the terms of the contract in Cummings v FedEx[22] as follows:
- The court should classify the clause as being narrow or broad.
- It should then determine if the dispute, prima facie, falls within its purview or is collateral to it.
- If the clause is broad, then, collateral issues would also fall within its purview but not if it’s narrow.
It was held that the phrase ‘arising out of’ is wider than ‘arising under’ and includes tort claims related to the main contract[23]. The liberal approach was also developed by the US[24], UK[25], and Germany[26] on the premise that any two rational parties will intend the disputes arising out of one agreement to be heard by a single forum to avoid fragmentation and duplicity of proceedings regarding the same[27]. Public policy also plays a role in determination of scope as courts work on a ‘presumption in favour of or against arbitration’ of a particular issue.
In brief, the principles established in the landmark judgment of AT&T[28] were as follows:
- Arbitration is a matter of contract and parties cannot be forced to resolve their disputes in a manner they did not agree upon.
- Parties are free to assign jurisdiction to determine scope to the arbitrator but not the validity of the Agreement.
- The court shall not rule upon the merits of the underlying dispute while ruling upon the validity of the Agreement.
- The court shall decide scope presuming that the parties had agreed to arbitrate the subject matter.
It was questioned in Conoco Phillips Inc. v Local United Steelworkers Int’l Union[29] whether the parties to a collective bargaining agreement (CBA) had agreed to arbitrate the scope of the Agreement. The Union filed a grievance after an employee was discharged consequent to his failing of a drug test. The CBA specifically excluded from arbitration matters of employment and discharge. The arbitral tribunal determined he had jurisdiction to hear the matter and delivered an award against the employer which was subsequently vacated by the Court of Appeal in the 5th Circuit. It declared that the language of the Agreement was specific and exclusive and that the parties did not intend to confer on the arbitrator jurisdiction to rule on its own jurisdiction. This was in line with principles 1, 2 and 4 cited above.
In Stolt-Nielsen, S.A. v Animal Feeds Int’l Corp.[30], the Supreme Court held that the arbitrator does not have the authority to permit class action unless there is a specific contractual basis to do so. In light of this ruling, there was speculation of whether class arbitration will be permitted in Oxford Health Plans LLC v John Ivan Sutter[31] under a clause, stating that no disputes shall be referred to a civil court. The Supreme Court upheld the construction of the arbitration clause that class arbitration, though not specifically mentioned, was valid.
Arbitration clauses maybe incorporated by explicit reference to other documents containing agreements to arbitrate. For instance, when only the latter of the two successive contracts in the same chain of transaction contains an arbitration clause, it may be extended to the disputes arising out of the first contract, as seen in Norscot Rig Management Pvt. Ltd. v Essar Oilfields Services Ltd.[32] an initial Memorandum of Understanding for purchase of certain equipment was converted into Operations Management Agreement. Subsequently, a dispute arose due to sale of defective equipment and petitioners approached the arbitral tribunal, which was challenged as being without jurisdiction in the present matter. Justice Burton, however, held that although the dispute did ‘not arise out of’ the OMA is ‘related to’ it, therefore the arbitral tribunal had jurisdiction. English judges tend to place reliance in the case of Fiona Trust[33] to give a liberal interpretation favouring arbitration as was done by Blackburne J., in Wedlake Bell v Jones[34] wherein a completely distinct Severance Agreement was subjected to arbitration despite the absence of such a clause, as the contract made reference to rights and liabilities of partners which arose out of the Partnership Agreement, referring ‘all disputes’ to arbitration.
- Arbitrability of the said Dispute.
The U.S. Supreme Court has added various connotations to ‘arbitrability’ and perpetuated misuse since its landmark judgment of First Options[35], the most recent example being the case of Nitro-Lift Technologies, LLC v. Howard,[36] wherein the U.S. Supreme Court discussed the two threshold issues of arbitrability: its validity and enforceability, and whether the dispute fell within the scope of the agreement.
However, there is broad consensus in the remainder of the international community that the question of arbitrability relates to; (i) whether the signatory parties were entitled to submit their disputes to arbitration, and (ii) whether the said dispute is capable of being determined by an arbitral tribunal. The former is known as subjective and the latter as objective arbitrability.
Arbitrability is often considered to be a choice-of-law problem.[37] Nonetheless, it is a problem of jurisdiction. “It arises from the scope of national legal order for certain matters of persons the state forum has exclusive jurisdiction and thus does not recognize unilaterally jurisdiction to any other forum, arbitral or state.”[38] The Indian jurisdiction recognizes arbitrability as a problem that “would result in rendering the claims or subject matter presented before the Arbitral Tribunal as non-arbitrable either being barred by law or due to falling outside the scope and thereby taking away the jurisdiction of the Arbitral Tribunal to rule on the said claims would certainly be included in the plea of ‘does not have jurisdiction’, as prescribed under Section 16 (2) of the Arbitration and Conciliation Act, 1996.”[39] Once this is acknowledged, there is a strong argument favoring the arbitral tribunal as the proper forum to decide whether or not it has jurisdiction over the question of arbitrability, keeping the general rule of kompetenz-kompetenz.
Arbitrability is determined by the law applicable as per conflict-of-law analysis in case of international and national laws in case of domestic arbitration while proceedings are going on and by the national law of the country where enforcement is sought at that time.[40] Aspects of arbitrability like its method of determination in different countries and fora are beyond the scope of this essay.
Subjective arbitrability is the legal capacity of a person to enter into an arbitration agreement. The general rule is that any natural or legal person capable of entering into a valid contract has the capacity to conclude a valid arbitration agreement[41], excluding some state controlled economies lacking capacity due to absence of foreign trading license.
Insolvency of a party is an issue of subjective arbitrability as is seen in Elektrim SA v Vivendi Universal[42], the Swiss Supreme Court had upheld the decline of jurisdiction by the arbitrators on declaration of insolvency of Elektrim in its country of origin, Poland. The case laid down that the legal capacity of an entity was determined by the law at the place of incorporation. This decision was met with massive criticism from the arbitration community which argued that the legislation that was relied on, Polish Bankruptcy and Reorganization Act, did not affect the capacity of a person to be party to a foreign seated arbitration. This approach was revisited and decided contrarily in a recent decision dated 16/10/2012 (case reference 4A_50/2012), establishing that Swiss lex arbitri governed the capacity of all parties to a Switzerland-seated arbitration, and the only requirement under it was legal personality.
Despite the recent trend of bringing most disputes within the purview of arbitration for the ease of conduction of business, certain matters are made determinable exclusively by the national courts of the country to prevent questions of public policy and national interests from being determined by arbitrarily constituted tribunals. This is objective arbitrability. Each country has a different law, however, the arbitrability of certain matters like crime, human rights, investment in natural resources, securities transaction, insolvency, anti-trust, corruption and intellectual property is somewhat disputed[43]. The position on the last three shall be discussed here.
Intellectual Property Rights
The fundamental principle behind inarbitrability is that a tribunal constituted arbitrarily by two parties cannot be endowed with authority to rule upon an issue taking effect erga omnes. This would, firstly, challenge the contractual nature of arbitration[44]; and secondly, usurp the State’s power of making decisions in public interest. In case of intellectual property rights, it deprives state of the power to control the grant of monopoly rights in public interest. Nonetheless, copyrights[45], patents and trademarks disputes are arbitrable in most European jurisdictions[46] and the U.S. It is now settled that the arbitral tribunal can decide the validity or ownership of an IPR if it arises as a preliminary issue in the proceedings, however, the conclusion would operate inter partes[47]. Even reluctant jurisdictions like Israel are gradually declaring such disputes to be arbitrable[48].
Bribery
It has been held in the Fiona Trust case[49] that “there is no reason why arbitrators should not have jurisdiction to decide whether the contract was procured by bribery.” All international economic disputes are prima facie arbitrable in most jurisdictions. The traditional view was founded on concerns of limited jurisdiction of the tribunal as also its restricted power to compel production of documents. However, the notion of arbitration of contracts tainted with allegations of bribery was first introduced in the Swiss Federal Tribunal decision in National Power Corporation v Westinghouse[50] and the contemporary approach was developed in Westacre Investments Inc. v Jugoimport SPDR Holding Co. Ltd.[51] The latter award was appealed against and the appeal was dismissed as the court held the award enforceable due to the principles of separability of the arbitration agreement (from the bribery tainted contract), kompetenz-kompetenz and public policy in favour of enforcement of international arbitral awards.
Arbitrators, today, need to focus on more complex questions of burden of proof when allegations are themselves disputed and dealing with the matter suo moto when no allegations have been made by either party but it is reasonably presumable form the circumstances that the contract is rooted in bribery. This also engenders a paradox of a possible challenge to the arbitrator’s jurisdiction in the latter situation as a challenge to enforcement of the arbitral award if made in face of a corrupt contract. In World Duty Free Company Limited v the Republic of Kenya[52], the claimant alleged that the government had appropriated two duty free complexes but the respondent claimed that the contract was unenforceable since it had been obtained through a ‘personal donation’ of $2 million to the president. The tribunal found the respondent’s claim corroborated by a claimant witness and dismissed the contract as void.
Anti-trust
In Mitsubishi v Soler Chrysler-Plymouth[53], it was held that the respondent’s claims were arbitrable due to concerns of international comity, respect for foreign tribunals and for the sake of predictability in international commercial arbitration.
- Seat of the Arbitral Tribunal
The choice of seat of arbitration is one of the primary questions for the contracting parties as the arbitral tribunal derives its authority in accordance with and is governed by the law of the seat i.e. lex arbitri. Even though there is no consensus among different jurisdictions as to which law, the lex arbitri or substantive law i.e. lex causae, should govern the agreement, the scales weigh in favour of lex arbitri.
The substantive law, governing law and lex fori are usually the same.[54] However, there exist cases where all these laws differ and there is discrepancy in their application. Where the parties have not expressly specified the law governing the arbitration agreement and the conduct of arbitration, then lex arbitri would apply which is also known as curial law.
The seat of arbitration may be different from its venue. Although the two are often used interchangeably, it is the seat which determines the legal framework within which the arbitration takes place, not the location where the parties or the tribunal choose to conduct the proceeding for reason of convenience of the parties, witnesses or the tribunal itself.[55] This is permitted under most national laws, Article 20 of UNCITRAL Model law and institutional arbitration rules such as Article 18 of UNCITRAL Arbitration Rules, Article 16(2) of London Court of International Arbitration Rules and Article 18 of ICC Rules of Arbitration. In Black- clawson v Papierwerke[56] and C v D,[57] it was stated that it is rare for parties to choose a lex arbitri distinct from the law of the seat. Also, arbitration in contracts that do not specify procedural rules for appointment of the tribunal and the conduct of arbitration will be determined in accordance with the law of the seat.
If the arbitration agreement does not specify a seat for the arbitration then the lex arbitri cannot be determined until a seat is agreed upon by the parties or chosen by the arbitral tribunal or a nominating authority.[58] Often, the arbitration agreement is found to be very closely connected with the law of the seat, which is also the place where the award is treated as “made” for the purpose of the New York Convention.[59]
In U&M Mining Zambia Ltd v Konkola Copper Mines,[60] it was held that in the absence of any other indication, “place” meant “seat.” Likewise, in Shashoua v Sharma[61] the specification of a ‘venue’ but no seat was considered as strong evidence of intention that the seat should be in the same jurisdiction. Notably, there was no express choice of alternative curial law.
The recent case of Enercon India v Enercon GMBH[62] discussed the laws that may potentially govern the arbitration agreement. The court held that the geographically convenient place like the venue of arbitration, London, should not be confused with the seat of arbitration which was undoubtedly India. The parties had clearly stated the curial law to be the Indian Arbitration Act, 1996 and therefore, could not have intended the seat of arbitration to be London when all other applicable laws were Indian. It is seen that the Indian Courts give preference to the substantive law of the contract and it is considered to have the “closest connection” with arbitration agreement unlike England where the law of the seat of arbitration qualifies the “closest and real connection” test. Recently, in Sulamerica Cia Nacional De Seguros v Enese Engenharia[63] stated that the seat of the arbitration determines the curial law and concluded that the law with which the agreement to arbitrate had its closest and most real connection was the law of England, i.e. law of the seat rejecting the appellant’s argument that the arbitration agreement was governed by Brazilian law, the substantive law of the contract.
Similarly, in Habas Sinai v VSC,[64] where the substantive and governing laws were not specified, the closest connection test was applied and the law of the seat was concluded to be the law applicable to the arbitration agreement. As an exception to the above stated general approach of the English Courts, in Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd[65] the English Arbitration Act, 1996 was held to be applicable even when the seat was designated as Scotland.
- Conclusion
The essay has briefly discussed the formal and substantive requirements for a valid arbitration agreement, effective implementation of kompetenz-kompetenz principle, importance of consent and intention of parties in determination of scope, deference to arbitrators’ interpretation of the Agreement, the transition from a restricted to a liberal approach to arbitrability of disputes in three core areas and the importance of choice of seat.
From the above discussion, it would be reasonable to conclude that Court’s determination of disputed existence and validity of the Agreement is in line with the principle of natural justice, namely, nemo judex in causa sua. This is especially important in light of the recently developed court tendency of giving extreme deference to the arbitrators’ determinations and also the fact that this challenges the fundamental presumption that the parties mutually agreed to submit the dispute to arbitration.
Further, the court should then determine whether the parties have expressly conferred upon the tribunal the jurisdiction to determine scope of the Agreement. If it finds the answer in the negative, then, it should also determine the scope before referring the dispute to arbitration since arbitration is a consensual process and the parties should not be forced to arbitrate anything more than what they agreed to. This will also preclude the contingency of the arbitrator declining jurisdiction forcing the parties to come back to the court. It is, therefore, evident that a well drafted arbitration agreement with clear statement of the parties’ intention is the only measure that will allow the parties to enjoy the benefits of arbitration.
Legal practitioners often interpret and misinterpret language to their advantage while it is the courts’ responsibility to provide with a standard and the most appropriate connotation. Therefore, it would be a breach of duty on part of the courts to associate and perpetuate unnecessarily wide meanings to the word ‘arbitrability’.
The Swiss status quo on arbitrability laid down in the later case is well reasoned as it is possible that the arbitral award does not have to be enforced in the jurisdiction of origin of the subjectively incapable party. It would be unfair to allow interference by the laws of the country that has no stake in a foreign seated arbitration. They shall later, in accordance with New York Convention, be allowed to determine arbitrability as per their laws in case it is sought to be enforced in that country.
We are in complete agreement with the status quo on objective arbitrability as a contractually constituted tribunal should not have the power to determine issues that affect the general public and operate erga omes. The State should retain the exclusive right to rule in the interest of its citizens. However, they may be determined as preliminary issues but the conclusion shall operate inter partes.
The parties themselves should carefully choose the seat of arbitration as it has a bearing on lex arbitri, which further has a bearing on the award itself. However, no general rule should exist as to whether the law of the arbitration agreement or substantive law should govern the arbitration proceedings. It should be determined, in each case upon its facts, after considering which of the two is likely to deliver the most consistent result on enforcement.
Lastly, the approach of the English courts is bent in favor of expansion of their own jurisdiction and their position changes in case the seat is not England, therefore, their approach should not be regarded as standard.
[2] Entico Corporation Ltd v UNESCO [2008] EWHC 531 (Comm)
[3] Internaut Shipping GmbH and Sphinx Navigation Ltd of Liberia v Fercometal Sarl [2003] EWCA Civ 812
[4] Consorts Ury v SA Galeries Lafayette [1975] Rev Arb 235
[5] Gary B. Born, International Arbitration Cases and Materials ( South Asian Reprint edn, Wolters Kluwer Law & Business 2011) 855
[6] Steven H. Reisberg, ‘The American Review of International Arbitration: The Rules Governing Who Decides Jurisdictional Issues: First Options v Kaplan Revisited’ Vol 20, No 2
[7] [1964] 376 US 543
[8] [2009] EWHC 3509 (Ch)
[9] C-185/07 [2009] EUECJ
[10] The English Arbitration Act 1996
[11] Hotels Com v Zuz Tourism Ltd [2006] Y B Comm Arb 791 (Israeli S Ct)
[12] [2011] EWHC 587 (Comm)
[13] Chloro Controls India (P) Ltd v Severn Trent Water Purification Inc [2013] 1 SCC 641
[14] [2005] 8 SCC 618
[15] Chloro (n 11)
[16] Arb P No 184/2012
[17] [1989]886 F 2d 469, 473
[18] [2007] Bus LR 1719 at [17]
[19] [1993] QB 701
[20] [2006] 546 US 440
[21] [2006] 546 US 440
[22] [10th Cir 2005] 404 F.3d 1258, 1261
[23] Aggeliki Charis Compania Maritima SA v Pagnan SpA [1995] 1 Lloyd’s Rep 87
[24] Invista North America SARL v Rhodia Polyamide Intermediates SAS [2007] 503 F. Supp. 2d 195
[25] Fiona Trust and Holding Corp v Privalov [2007] Bus LR 1719 at [17]
[26] [1990] Arbitration International vol. 6, No. 1 p. 79
[27] Fiona (n 25)
[28] AT&T Technologies Inc v Communications Workers of America [1986] 475 US 643
[29] [2014] No. 12-31225
[30] [2010] 130 S Ct 1758
[31] [2013] 133 S Ct 2064
[32] [2010] EWHC 195
[33] Fiona (n 25)
[34] [2007] EWHC 1143 (Ch)
[35] Fiona (n 25)
[36] [2012] 568 U.S. 133 S. Ct. 500
[37] Lew, Mistelis And Kroll, Comparative International Commercial Arbitration (Kluwer 2003) 196
[38] Loukas A. Mistelis & Stavros L. Brekoulakis (eds), Arbitrability: International And Comparative Perspectives, (Wolters Kluwer 2009) 125
[39] National Highways Authority India v MECON-GEA Energy Systems India Ltd JV O.M.P. 790/2012
[40] UNCITRAL Model Law Article 1(5)
[41] Belgium, Judicial Code Article 1676(2)(1)
[42] [2007] SA Rev 1 App LR 01/ 19
[43] Sutton, Gill, Gearing, Russell on Arbitration, ( 23rd edn, London Sweet & Maxwell 2009)
[44] Christopher John Aeschlimann, ‘The Arbitrability of Patent Controversies’, (1952) 44 J Pat Off Soc’y 655, 662-3
[45] The Saturday Evening Post Co v Rumbleseat Press Inc [1987] 816 F 2d 1191
[46] Antoine Kirry, ‘Arbitrability: Current trends in Europe’, (1996) 12 (4) Arb Int’l 373-89
[47] Interim Award in Case NO. 6097(1989), ICC Bulletin, Oct. 1993, 78
[48] Golan Work Of Art Ltd v Bercho Gold Jewellery Ltd Tel Aviv District Court Civil Case No 1524/93 66
[49] Fiona (n 25)
[50] [3d Cir. 1991] 949 F 2d 653
[51] [1999] EWCA Civ 1401
[52] ICSID Case No ARB/00/7
[53] [1985] 473 US 614
[54] Miller v Whitworth Street Estates Ltd [1970] 1 Lloyd’s Rep 269
[55] Redfern and Hunter, The Law and Practice of International Commercial Arbitration (London Sweet & Maxwell 1999) 69
[56] [1981] 2 Lloyd’s Rep 446, 483
[57] [2007] EWCA Civ 1282
[58] Andrew Tweeddale Keren Tweeddale, Arbitration of Commercial Disputes, International and English Law and Practise, (OUP Oxford 2007)
[59] Dicey, Morris & Collins, The Conflict of Laws, (14th edn, Sweet and Maxwell 2006)
[60] [2013] EWHC 260 (Comm)
[62] Civ App 2086/7 of 2014
[63] [2012] EWCA Civ 638
[64] [2013] EWHC 4071 (Comm)
[65] [2008] EWHC 426
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