b) Second, the parties cannot evade the application of compulsory EU law by choosing a third-country national law as the law governing the content of their relations (see Ingmar). However, as Eco Swiss`s decision shows, the legal choice clause (or arbitration agreement) is not. It simply means that a court hearing the case is obliged to apply binding principles of EU law, regardless of the explicit choice of the parties. Section 7 of the English Arbitration Act of 1996 provides that, unless otherwise agreed, the compromise clause is not considered invalid, as the underlying contract has become invalid. Sydney Jacobs, Barrister at 13 Wentworth Chambers and Vikram Misra, Barrister at Clarence Chambers continue their series in conciliation and mediation. Following their previous article, in which they gave an overview of the Tribunal`s power to refer a dispute to arbitration, Sydney and Vikram examine the meaning of “null and null, ineffective or unfit to be executed,” as stated in S 8 (1) of the Commercial Arbitration Act 2010 (NSW). Follow your series here. Most modern arbitration laws contain an explicit provision on separation, including Hong Kong (point 34), both in common and civil law; Sweden (section 3); Brazil (Article 8); Spain (Article 22); Portugal (Article 18.2). Bulkbuild argued that the agreement “could not be executed” for the purposes of Section 8. Bulkbuild`s complaint against Fortuna arose from substantive issues similar to those of its complaint against the second and third defendants in the same trial.
As a result, Bulkbuild asserted that there was a risk of different facts if its action against Fortuna was determined by arbitration, but its claims against the other defendants were determined by a court. The effect of an arbitration agreement applies independently and is not affected by the modification, dissolution, termination or nullity of a contract. The Supreme Court of Queensland`s decision of Bulkbuild Pty Ltd against Fortuna Well Pty Ltd – Ors  QSC 173 indicates whether an arbitration agreement under the Commercial Arbitration Act 2013 (Qld) is “unable” to be implemented. Even if the contract as a whole is invalid under state or federal law, the arbitration provision can be maintained, the court ruled. According to the FAA, the arbitration provision is applicable separately and the arbitrator has the right to hear claims about the validity of the contract. [ Buckeye Check Cashing , Inc. v. Cardegna, No. 04-1264 (US Sup Ct, 2/21/06).] The relationship between the elements of Section 9 of the Arbitration Act 1996, which requires a court to interpret its procedure where there is a valid and applicable compromise clause with respect to litigation, is a matter of some difficulties. The long judgment of Aikens LJ, which argues in favour of the Court of Appeal of the Joint Stock Company “Aeroflot Russian Airlines” against Berezovsky  EWCA Civ 784, provides a welcome clarification.