Maxwell Lectures Webinar: Harmonising Judicial Approaches to Choice of Law in Arbitration Agreement

Maxwell Lectures Webinar: Harmonising Judicial Approaches to Choice of Law in Arbitration Agreement | 19 August 2021

Maxwell Chambers successfully concluded Maxwell Lectures: Harmonising Judicial Approaches to Choice of Law in Arbitration Agreement on 19 August 2021, featuring Dr. Winnie Jo-Mei Ma from The Arbitration Chambers.

In the absence of the parties’ express choice of law for their arbitration agreement and any default choice provided by the applicable legislative or institutional rules, courts worldwide remain divided between the law governing the contract and the law of arbitral seat. This is because of different timing or context for determining the law applicable to the arbitration agreement, different types of arbitration agreement, or different permutations of the parties’ chosen seat and chosen law for their contract. The courts also disagree on the parties’ intentions when ascertaining the implied choice of law or the law with the closest connection, as well as on the applicability of the principles of separability and validation.

This webinar explored the sources and causes of the incessant inconsistency and intricacy in judicial determination of the law governing the arbitration agreement. Alleviating the current uncertainty demands concerted efforts by the parties to expressly specify the law governing their arbitration agreement, as well as by legislatures and arbitral institutions to provide for default choice of law.

Highlights from the Poll Results:

(1) If (a) the parties have not expressly chosen any law for their arbitration agreement; (b) the parties have made different choices with respect to the law of the contract and the seat; and (c) the applicable laws or institutional rules do not provide a default choice of law for the arbitration agreement:

What would be your most preferred law for the arbitration agreement?

a. The law of the contract (without exceptions) – first round (25.9%) / second round (14.4%)
b. The law of the contract (with exceptions) – first round (28.4%) / second round (24.2%)
c. The law of the seat (without exceptions) – first round (12.8%) / second round (13.5%)
d. The law of the seat (with exceptions) – first round (19.3%) / second round (30.7%)
e. The law favourable to the validity of the arbitration agreement – first round (13.6%) / second round (17.2%)

(2) What would be your most preferred scope of application for the choice of law rule in New York Convention Art V(1)(a) (from the narrowest to the widest)?

a. Validity of arbitration agreement when determining an award’s enforceability – 38%
b. Validity of arbitration agreement for all judicial determinations – 17.5%
c. All issues concerning arbitration agreement (except for arbitrability and capacity) when determining an award’s enforceability – 22%
d. All issues concerning arbitration agreement (except for arbitrability and capacity) for all judicial determinations – 22.5%

Watch the full recorded session below:

Attendance Policy

Participants who wish to obtain CPD Points are reminded that they must comply strictly with the Attendance Policy set out in the CPD Guidelines. For this activity, this includes logging in at the start of the webinar and logging out at the conclusion of the webinar in the manner required by the organiser, and not being away from the entire activity for more than 15 minutes. Participants who do not comply with the Attendance Policy will not be able to obtain CPD Points for attending the activity. Please refer to http://www.sileCPDcentre.sg for more information.

Practice Area: Alternative Dispute Resolution

Training Category: General

Earn 1 Public CPD Point

Speaker

DR. WINNIE JO-MEI MA

Dr. Winnie Jo-Mei Ma is an independent arbitrator and resident of The Arbitration Chambers, Fellow and Approved Faculty Member of CIArb (formerly convenor of East Asia Branch Taiwan Chapter). She is also an Advisor to the Chinese Arbitration Association, Taipei (formerly Deputy Secretary-General), and Honorary Assistant Professor of Bond University Law Faculty.

Qualified and admitted to practise in Australia, Winnie has 20 years of teaching experiences, with special focus on international commercial arbitration and private international law. Her SJD thesis, “Public Policy in the Enforcement of Arbitral Awards: Lessons for and from Australia”, has achieved more than 16,000 full-text downloads. Unknown to many, Winnie was a key member of an international team of experts from Taiwan, Australia and Singapore (2012-2016), initiating a project and presenting a draft convention and submission to the United Nations which culminated in the Singapore Convention on International Settlement Agreements Resulting from Mediation (2019).

Terms & Conditions

Registration – Limited slots are available on a first-come-first-served basis.

Cancellations – If you are unable to attend, a substitute participant is welcome. Please inform us of the substitute participant’s particulars in filling up the registration form.

The Organiser reserves the right to cancel or alter the content and timing of the programme or the identity of the speakers. In the event that the Seminar is cancelled by the Organiser, the participants will be notified prior to the webinar.