Confused Seas: Identifying the Proper Law of Arbitration Agreements in Maritime Contracts - England, Singapore and Australia

Abstract

The proper law of an arbitration agreement is crucial for the enforcement of arbitration clauses and arbitral awards but maritime contracts rarely make explicit their arbitration agreement’s proper law. Complicating matters, several approaches have emerged for identifying the proper law. England and Singapore utilise similar frameworks, each of which broadly aligns with Australian conflict of laws rules. However, the tests’ application diverges between, and within, England and Singapore. Meanwhile, it remains to be seen whether Singapore will follow recent changes to the English approach. As a result, the operation of arbitration agreements found in the leading maritime contracts examined in this article is uncertain. To ensure that arbitration agreements operate as intended, users of maritime contracts should specify the proper law of the arbitration agreement in each arbitration clause.