The law governing the arbitration agreement: a transnational solution?
This chapter contributes to the debate by examining the problem of the law applicable to the existence, validity, and effectiveness of the arbitration agreement when there is no express choice of such a law. It aims to set out framework for the development of a possible 'transnational' solution to the problem so that convergence and predictability can, with time, be achieved. The French courts adopt a transnational approach to the arbitration agreement, and therefore it was not strictly necessary to apply the estoppel approach. The chapter explains why a separate inquiry into the law governing the arbitration agreement is necessary and discusses the implications of such a separate inquiry. It reviews three possible approaches to determining the law governing the arbitration agreement, namely the application of the law chosen by the parties to govern their substantive rights and obligations; the application of the law of the seat of the arbitration; and the application of 'transnational' rules.