Arbitration Decisions from Around the World, card 1. A subcontract performed by a contractor from Türkiye on a Russian power plant produced one of the most cited arbitration judgments of the UK Supreme Court. The question was simple: where the parties have not expressly chosen a law for their contract, which law governs the arbitration agreement?
Case details
- Case: Enka İnşaat ve Sanayi A.Ş. v OOO Insurance Company Chubb [2020] UKSC 38
- Court: UK Supreme Court
- Date: 9 October 2020
- Majority: 3 to 2 (dissenting: Lord Burrows and Lord Sales)
- Arbitration clause: ICC Rules, seat in London
- Earlier stages: [2019] EWHC 3568 (Comm), anti-suit injunction refused; [2020] EWCA Civ 574, injunction granted on appeal
- Later development: section 6A of the Arbitration Act 1996, inserted by the Arbitration Act 2025, in force from 1 August 2025 (see below)
The ruling in one sentence: a choice of law for the main contract will generally apply to the arbitration agreement as well; where there is no choice at all, the arbitration agreement is governed by the law with which it is most closely connected, which will generally be the law of the seat. In Enka there was no choice, so English law governed the London arbitration clause.
What was the dispute?
In February 2016 a fire broke out at the Berezovskaya power plant in Russia. Enka was a subcontractor on the construction of the plant; its subcontract was later assigned to the owner, Unipro, and contained an ICC arbitration clause with a London seat. The owner’s insurer, Chubb Russia, brought a subrogated tort claim against Enka and ten other parties in the Moscow Arbitrazh Court in May 2019. Enka asked the English court for an anti-suit injunction on the basis that the Russian claim breached the arbitration agreement.
Key passages
The majority summarised its principles in nine points at paragraph 170. The three most often cited:
“ii) According to these rules, the law applicable to the arbitration agreement will be (a) the law chosen by the parties to govern it or (b) in the absence of such a choice, the system of law with which the arbitration agreement is most closely connected.”
Para. 170(ii)
“iv) Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the contract will generally apply to an arbitration agreement which forms part of the contract.”
Para. 170(iv)
“viii) In the absence of any choice of law to govern the arbitration agreement, the arbitration agreement is governed by the law with which it is most closely connected. Where the parties have chosen a seat of arbitration, this will generally be the law of the seat, even if this differs from the law applicable to the parties’ substantive contractual obligations.”
Para. 170(viii)
In the same paragraph the Court added that a serious risk that the arbitration agreement would be ineffective under the law of the main contract may point to an implied choice of the law of the seat (170(vi)(b)), and that the question is governed by English common law conflict rules rather than Rome I (170(i)).
The two dissenting justices would have found an implied choice of Russian law from the contract as a whole. On the injunction, the Court agreed with the Court of Appeal and dismissed Chubb’s appeal.
Why it matters
- Drafting: stating the law of the arbitration agreement inside the clause itself became standard practice after Enka. A sentence such as “This arbitration agreement is governed by the law of …” ends the argument before it starts.
- Scope: tort claims and subrogated claims by insurers may fall within the clause, and which law applies directly affects that answer.
- Anti-suit relief: English courts can restrain foreign proceedings brought in breach of a London-seated clause; a foreign law governing the clause does not by itself prevent this.
The view from Türkiye
Under Article 4 of Türkiye’s International Arbitration Law (Law No. 4686), an arbitration agreement is valid if it complies with the law the parties chose for the arbitration agreement or, failing such a choice, with Turkish law. At the enforcement stage, Article V(1)(a) of the New York Convention looks to the law to which the parties subjected the agreement or, failing any indication, the law of the country where the award was made. Both look to a choice made for the arbitration agreement itself rather than for the main contract. For contracts with a party from Türkiye and a foreign seat, naming the law of the clause separately reduces the room for argument at the annulment and enforcement stages.
Caveat: the English rule changed in 2025
Section 6A of the Arbitration Act 1996, inserted by the Arbitration Act 2025, came into force on 1 August 2025. The arbitration agreement is now governed by the law the parties expressly choose for it or, failing that, by the law of the seat; a choice of law for the main contract is not, by itself, an express choice for the arbitration agreement. In England the first Enka principle has therefore been replaced by statute, and the transitional rules for older contracts need separate checking. Enka continues to be cited in other common law jurisdictions for its conflict of laws analysis.
Frequently asked questions
The contract says “Swiss law applies, seat London”. Which law governs the arbitration clause? Under Enka, generally Swiss law. Before an English court after 1 August 2025, section 6A applies: the choice for the main contract is not enough, so the law of the seat, English law, governs.
What can be done if a claim is brought abroad in breach of the clause? An anti-suit injunction can be sought from the courts of the seat, or the arbitration agreement can be raised as an objection before the foreign court. Which works better depends on the seat and the country where the claim was filed.
For general information only; not legal advice. Sources: Enka İnşaat ve Sanayi A.Ş. v OOO Insurance Company Chubb [2020] UKSC 38 (supremecourt.uk, UKSC 2020/0091), paragraph 170 as set out in UniCredit Bank GmbH v RusChemAlliance LLC [2024] EWCA Civ 64 (caselaw.nationalarchives.gov.uk); [2020] EWCA Civ 574; [2019] EWHC 3568 (Comm); Arbitration Act 1996 s.6A (inserted by the Arbitration Act 2025); Law No. 4686 on International Arbitration, Art. 4; New York Convention 1958, Art. V(1)(a); case summaries in published legal commentary.