This article examines the problem of the law governing the validity of the arbitration agreement. The cases of Sulamérica in the English Court of Appeal and of FirstLink in the High Court of Singapore demonstrate that leading arbitration jurisdictions around the world can come to diametrically opposite results. In particular, the alternative between the law chosen by the parties to govern their substantive legal relationship and the law of the seat of the arbitration is unlikely to be settled any time soon at international level. However, without embracing extreme approaches that purport to determine the validity of the arbitration agreement without reference to any national legal system, a more ‘transnational’ approach should be encouraged and may emerge based on three structured principles on which international convergence would be desirable, namely the non-discrimination principle, the estoppel principle and the validation principle. These principles can be developed without any conflict with the conventional conflicts of laws approach which was adopted by the English Court of Appeal in Sulamérica.
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