Neither express nor implied: rethinking governing law of the arbitration agreement

Abstract

What law governs the arbitration agreement is a dividing issue in international arbitration. This Article critically examines three prevailing approaches from a both empirical and theoretical perspective. Using arbitral institutions’ statistics, the Singapore Academy of Law’s survey, and public filings of the U.S. Securities and Exchange Commission, it evaluates whether the prevailing approaches are consistent with commercial practices of drafting international arbitration agreements. The Article concludes that treating law of the seat as the default governing law of the arbitration agreement, in the absence of an express choice of law for the arbitration agreement, is the most ideal approach.