Jurisdiction and the Law Governing the Arbitration Agreement: An Australian Perspective and a Case for the Seat Theory

The law governing the arbitration agreement is fundamental as it determines the jurisdiction of the arbitral tribunal, yet it is often forgotten. This article examines the law governing the arbitration agreement - what it is, why we have it, and how important it is. It then introduces two opposing theories as to how to ascertain the law governing the arbitration agreement, the Host Theory and the Seat Theory, before making a case for the Seat Theory. After surveying the Australian case law surrounding this underrated area of law, this article points out that although, at first sight, Australian courts seem to subscribe to the Host Theory, a closer reading indicates that such a conclusion is questionable. The article concludes by encouraging parties to provide a Dialogue-style express choice of law governing the arbitration agreement, as opposed to a Kabab-Ji-style express choice.