8. Conflicting Conflict of Laws in International Arbitration? Choice of Law for Arbitration Agreement in Absence of Parties’ Choice

‘Arbitration agreement’ is an agreement by the parties to submit their disputes to arbitration, which may be a clause in a contract or a separate agreement. The parties may choose a national law to govern their arbitration agreement. In the absence of such an express choice of law and any applicable choice of law rules, national courts and scholars are divided by two alternative choices – the law governing the contract, or the law of the seat of arbitration. This disagreement persists because of different interpretations of the parties’ intention, different views about implied choice of law and the law with the closest connection, as well as different approaches to the principles of separability (of arbitration agreement) and validation. After exploring these disparities together with relevant provisions in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and UNCITRAL Model Law on International Commercial Arbitration, this Chapter makes recommendations based on the author’s preferred choice of law in light of different scenarios.