Case: UniCredit Bank vs. RusChemAlliance

Guest: Dr Paul Macmahon, Associate Professor of Law at the LSE Law School and the Director of the Executive LLM Programme

Episode Summary
In this episode of the podcast, hosts Luke Zadkovich and Calum Cheyne welcome Paul McMahon, an associate professor of law at LSE, to discuss the complexities of determining the governing law of arbitration agreements under English law following the UK Supreme Court decision in UniCredit Bank vs. RusChemAlliance. In this conversation, the speakers delve into this topic’s substantive and procedural complexities and practical effects. They focus on the Supreme Court considerations concerning the law of the main contract and the law of the arbitral seat. They also discuss the role of English law, forum non conveniens, and anti-suit injunctions concerning the nuanced topic of the applicable law to the arbitration agreement.

Guest's background:
Paul MacMahon is an Associate Professor of Law at the LSE Law School and the Director of the Executive LLM Programme. His primary interests are contracts, commercial law, and international arbitration. Before coming to the LSE, Paul taught at Harvard and Cambridge. He studied at Oxford (BA, BCL, DPhil) and Harvard (JD), and served as a law clerk in the United States for Judge Guido Calabresi and Judge John Gleeson. Paul also worked as a litigation lawyer at Skadden, Arps, Slate, Meagher & Flom LLP in New York City and remains a member of the New York Bar. In addition to teaching at LSE, Paul is a regular Visiting Professor at Católica Global School of Law in Lisbon. He has served as an expert on English law in foreign court proceedings.

Key Takeaways:

•  There is a lack of consensus on governing law among jurisdictions.
• Practitioners should explicitly state the governing law in arbitration agreements.
• Governing law for arbitration agreements often aligns with the main contract.
• The Enka decision introduced a caveat regarding governing law concerning the law of the seat of the arbitration.
• The proper place for claims seems to be determined by the context of the case.
• The English court's role is to enforce arbitration agreements effectively.
• International instability can influence arbitration disputes.
• The court's decision reflects a balance between legal and policy considerations.
• Future legislation may alter the current arbitration landscape.

Chapters

00:00: Introduction to the Podcast and Guests

02:53The Impact of LinkedIn on Legal Discussions

05:52Paul McMahon's Background and Interests

08:50The Popularity of International Arbitration Among Students

12:03Competition Among Jurisdictions for Dispute Resolution

14:54The Governing Law of Arbitration Agreements

18:13Case Study: UniCredit Bank vs. RusChm Alliance

30:00The Implications of Sanctions on Arbitration

33:05Judicial Perspectives on International Arbitration

37:25Understanding Jurisdiction and Governing Law

40:16The Enka Decision and Its Implications

47:27The Role of English Law in Arbitration Agreements

57:58Assessing the Proper Place for Claims

01:09:27Future Implications for Anti-Suit Injunctions

Keywords arbitration, governing law, international law, dispute resolution, legal education, LinkedIn, sanctions, jurisdiction, commercial law, contracts, jurisdiction, governing law, arbitration, English law, Enka decision, anti-suit injunctions, international arbitration, legal implications, arbitration agreements, Supreme Court