tag:blogger.com,1999:blog-6685096796297650696.post2008343768070060299..comments2023-12-23T18:42:30.780+05:30Comments on Practical Academic: Choice of Law of Arbitration Agreement: Corrections and ClarificationsBadrinath Srinivasanhttp://www.blogger.com/profile/11123853000962107353noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-6685096796297650696.post-50321830806132391022011-05-24T22:33:51.308+05:302011-05-24T22:33:51.308+05:30Yeah the distinction in V(1)(a) was noted in the f...Yeah the distinction in V(1)(a) was noted in the first post. Born himself seems to argue both ways. However, we could give Born the benefit of doubt as at p. 424 (noted in the first post on the topic) Born uses the term "potentially". Subsequently, he has dealt with this issue in detail. Perhaps, this issue needs harmonisation considering the variety of choice of law rules applied by different jurisdictions. The validation principle does not, on the face of it, seem convincing. Will do a detailed post on this. Thanks for the comments. Looking forward to more comments (and guest posts) from you. Will deal with the substantive law of contract issue once we are done with this issue.- Badrinath SrinivasanAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-6685096796297650696.post-90547596993917007562011-05-21T23:54:57.522+05:302011-05-21T23:54:57.522+05:30Thanks for taking note of the comments and for dea...Thanks for taking note of the comments and for dealing with the issues in detail. <br /><br />I agree that Indian courts are most likely to apply law governing arbitration agreement to the question of incapacity, but that is not necessarily the correct position. The opinion of most authors is that New York Convention and Model Law suggest that it is not so. If you read those provisions carefully, it seems to suggest that incapacity is governed by "law applicable to them". Many commentators suggest this should be the law of domicile of the party. Model Law does not suggest anything. You may want to check Gary Born's casebook on commercial arbitration released this year at p 408, where this question is discussed with excerpts from authority.<br /><br />On the law of arbitration agreement, probably you are correct that in most cases substantive law of contract governs, if provided for. There is some confusion in this field as civil law jurisdictions seem to suggest otherwise. Also the Swiss principle of validity bias allows any of 3 types of law which may affirm validity. <br /><br />I would like to know what suggests that in absence of indication substantive law of contract will be that of the seat. In my understanding, substantive law of contract has to be independently determined as per conflict of laws principle - the proper law. This seems to be the unanimous opinion in Model Law and all arbitration rules.Sumit Raihttp://bookcrazy.wordpress.comnoreply@blogger.com