The main issue before the court was whether the existing legal provision, which states that English law governs the contract, was an explicit or tacit choice of the law that governs the fda arbitration agreement. The cases can be summarized as follows: the Court found, in accordance with practice, that different obligations in the same treaty could be subject to different laws, while noting that “different legal systems apply to different parts of a contract, which can lead to inconsistencies and uncertainties.” The Court then considered the unique role of the compromise clause (which does not refer to material rights, but to an agreement on how to resolve material rights disputes) and the “cardinal” principle of dissociability. The Court found that this principle was relevant to the analysis of conflicts, as it “relieves the difficulties identified by Dicey, Morris and Collins … In the treatment of different parts of a contract as governed by different laws: if there is no explicit law of the arbitration agreement, the right with which that agreement has its closest and most real connection is either the law of the underlying contract or the right of the seat of arbitration. The Court of Appeal`s decision in Kabab-Ji SAL/Kout Food Group, issued on 20 January 2020, dealt with the right of an arbitration agreement in which the Paris headquarters was located and the underlying contract was governed by the law of England and Wales and included a “No Oral Modification” provision. The Court of Appeal found that the award was not enforceable and found that the boundary between each of the three stages of the investigation was fine and that the relative importance to be accorded to the legal choice of the underlying contract, on the one hand, and the choice of the seat of the arbitrator, on the other, was blurred in the English jurisprudence. Arbitration agreements are excluded under Rome I.  With respect to the determination of the law applicable to the arbitration agreement, the Court of Justice was therefore required to apply the rules developed by the common law in England to determine the law of contracts. As the Court of Justice said, the second factor was the impact of the choice of Brazilian law as the law that governs the arbitration agreement; That is, it could not be implemented without the agreement of both parties. If Brazilian law applies to the arbitration agreement, it can only be applied with the agreement of both parties, and the judge stated that there was “at least a serious risk that a Brazilian choice of law would significantly undermine that agreement.” There was no indication that the parties intended to enter into such a unilateral agreement. On this basis, Brazilian law could not be implied, and the question then turned to the law with the “closest and most real connection”. 1.
The material validity of the arbitration agreement without the choice of law; This can give rise to costly litigation that would have been unnecessary if the parties had established legislation in force in the compromise clause.