Clarification has recently been given by the Supreme Court in Enka v Chubb Russia  UKSC 38, on the principles to be applied to determine the proper law of an arbitration agreement, in particular where the governing law of the contract differs from the law of the seat of the arbitration.
As the Supreme Court noted, where an international commercial contract contains an arbitration provision, at least three systems of national law are engaged when a dispute occurs: (1) the law governing the substance of the dispute (the law of the contract), (2) the law governing the arbitration agreement, and (3) the law governing the arbitration process (the law of the seat of the arbitration). Where (1) and (3) are different, which governs (2) – the law of the contract or the law of the seat? It was against the background of the Court of Appeal having previously come to different conclusions on this question1 that Chubb Russia's appeal came before the Supreme Court.
1 Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA  EWCA Civ 638; C v D  EWCA Civ 1282