The Commercial Court considered a challenge to the validity of an arbitration agreement under section 67 of the Arbitration Act 1996. The dispute arose under an agreement that provided for ICC arbitration in London. The agreement was governed by Nigerian law. An award was made against the claimant, who challenged its validity.

Hamblen J proceeded on the basis that the issue was to be considered in accordance with English law. He endorsed the tribunal's finding that the arbitration agreement provided for arbitration in London and was implicitly governed by English law. It had its closest and most real connection with England because the arbitral seat was in London (applying C v D [2007] EWCA Civ 1282, discussed in Legal update, Law of seat determines scope of permissible challenges to arbitral award).

This was recognised by the parties in the Terms of Reference, which provided that the curial law applicable to the arbitration was English law. The effect of section 7 and the principle of separability meant that the arbitration agreement must be treated as a distinct agreement. It was not necessarily governed by the law governing the host agreement. Hamblen J rejected various arguments that the arbitration agreement was invalid on the basis of public policy considerations derived from Nigerian law because Nigerian law was irrelevant to the validity of the arbitration agreement.

The case adds further weight to the jurisprudence that favours treating the governing law of the arbitration agreement as coinciding with the curial law of the arbitration, rather than the proper law of the underlying contract.

Case: Abuja International Hotels Ltd v Meridien Sas [2012] EWHC 87 (Comm) (26 January 2012).