DETERMINING THE SEAT OF AN INTERNATIONAL ARBITRATION: PARTY AUTONOMY AND THE INTERPRETATION OF ARBITRATION AGREEMENTS

Abstract

AbstractThe seat of arbitration is fundamental to defining the legal framework for international arbitral proceedings. Although parties are able to select the arbitral seat, arbitration clauses are frequently ‘pathological’, failing to designate the seat or failing to do so clearly. If the seat is not clearly identified by the parties’ agreement, the court may be called upon to decide which country is the seat (typically, in order to determine whether or not it has jurisdiction to entertain certain types of arbitration application). The simplest situations are ‘uni-directional’ cases in which, in procedural terms, the parties' agreement points expressly or impliedly towards a single location. More difficult are ‘pluri-directional’ cases in which the agreement refers to more than one possible location. While certain scenarios are relatively straightforward, what constitutes a choice by the parties is more complicated if the parties' agreement contains signposts pointing in different directions. In ‘uni-directional’ cases, the English courts have developed a series of interpretative guidelines which solve most of the problems posed by potentially ambiguous clauses. However, in ‘pluri-directional’ situations, the English case law is less convincing. In such cases, the courts have not approached the identification of the arbitral seat in a consistent way; they have not laid down a clear doctrinal framework; and they may be legitimately criticized for displaying a measure of ‘forum preference’.