The law applicable to the substantive validity of an arbitration agreements in international arbitration

The invalidity of an arbitration agreement is a hurdle to the enforcement of an arbitral award in accordance with the New York Convention on the Recognition and Execution of Foreign Arbitral Awards and ground for annulment under the UNCITRAL Model Law. An impediment with such grave consequences requires a careful analysis in identifying the law to ensure the validity of an arbitration agreement for the enforcement of an award. There are three dimensions to the validity of an arbitration agreement, namely the form of an arbitration agreement, the capacity of the parties to enter into an arbitration agreement, and the substance of an arbitration agreement. Compared to the laws applicable to form and capacity, the law to be applied to the substantive validity is not as clear both in doctrine and in practice. For this very reason, it is necessary to conduct the analysis in this thesis. As there is no clarity in the relevant regulations, in practice, different methods are deployed by the courts and the arbitrators in the determination of the law applicable to an arbitration agreement. Courts are bound by their own rules, but arbitrators are not bound by any specific rules concerning conflict of laws but instead, are usually accepted to be bound by rules of the place of arbitration in the event the parties have not chosen the law applicable to the arbitration agreement. This thesis will show that place of arbitration still retains its significance in terms of the validity of an arbitration agreement.