It had been proposed that another law be supported by the doctrine of separation. The Court disagreed. The narrow purpose of the doctrine of dissociability is to ensure that the compromise clause (and thus the choice of forum for all disputes between the parties) remains effective even if the underlying contract is declared void. This does not mean that the arbitration clause is independent of the underlying contract. The second factor was the impact of Brazil`s choice of 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”. The “future” disputes that may arise when the agreement is stipulated in the material agreement between the parties, i.e. in a compromise clause, where consumer advocates have fought against the company`s practice of requiring consumers to sign arbitration agreements because consumers generally do not know that they have given up their disputes and because arbitration decisions regularly favour companies over consumers (for more information on disputes that are systematically resolved by the conciliation. , see also staff complaints: most disputes are resolved in arbitration or litigation?). As part of an investigation into 19,000 mandatory California arbitration proceedings, handled in 2003 by arbitrators appointed by the for-profit National Arbitration Forum (NAF), the nonprofit group Public Citizen found that companies won 94% of consumer lawsuits.
This is a difficult issue and will depend on the circumstances of the case and the approach of the arbitral tribunal or the national court dealing with this issue. This lack of clarity can lead to costly satellite proceedings that would not be necessary if the law governing the arbitration agreement were defined in the arbitration agreement. “Any dispute, controversy or claim that may arise from or in connection with [indicating a specific legal relationship of a non-contractual nature] is settled by an international commercial arbitration arbitration with the Russian Federation Chamber of Commerce and Industry in the city [indicate the location of the establishment icac] in accordance with the applicable RULES and regulations of the ICAC. II. The arbitration agreement recommended in the event that the legal relationship for which it is concluded is not contractual in nature: with respect to the law governing the arbitration agreement (and therefore some issues relating to the validity and existence of the arbitration agreement), BCZ argued that this is the law of New York (as the law that governs the BSG) and not the law of Singapore (the law of the court). Although the consideration of the issue had only a minor impact on the decision, the Court took the opportunity to present its opinion on this issue, specifying the points in their entirety and taking into account the differences between the authorities and academic opinions on the matter.