Determining The Governing Law Of Arbitration In The UK, The DIFC And India: A Comparative Analysis

Identifying the law that governs an arbitration agreement is not a mere technical nicety. It determines the validity, scope and interpretation of the agreement to arbitrate, informs who has supervisory jurisdiction, and often dictates the availability of interim measures and challenges to awards. Three bodies of law are in play. First, the law governing the underlying contract (lex contractus) regulates substantive rights (for India, see Arbitration and Conciliation Act 1996 (ACA 1996), s 28). Second, the law governing the arbitration agreement addresses its formation, validity, interpretation and scope (as reflected in Article V(1)(a) of the New York Convention). Third, the law of the seat (lex arbitri) sets the procedural framework and supervisory court (in UK, Arbitration Act 1996 (AA 1996), ss 2–3; in the DIFC, DIFC Arbitration Law, Law No 1 of 2008, arts 24 and 27). In cross‑border contracting, these laws can diverge. The questions become pressing in two common