An important consideration when drafting an enforceable arbitration agreement is the legal “seat,” or juridical location, of the arbitration. Both London and New York have established themselves as favorable arbitral seats because of their willingness to compel and safeguard the efficacy of parties’ agreements to arbitrate.
In its simplest form, an arbitration agreement is a mutual promise to resolve defined disputes through an arbitral process, rather than resorting to courts. This promise includes a positive obligation to submit the dispute to an agreed arbitral forum, and a negative obligation to refrain from commencing proceedings in a forum other than that specified in the arbitration agreement.1 While the positive obligation is addressed by a court’s power to compel arbitration, the negative obligation may be effected through the grant of an anti-suit injunction in support of the arbitration agreement. The duality of obligations was reflected in Pena Copper Mines Ltd v. Rio Tinto Co Ltd (1911) 105 LT 846, in which the English Court of Appeal recognized “certainly an implied negative” in the arbitration agreement and ordered Rio Tinto to desist from Spanish court proceedings which were “contrary to their contractual duties.”2
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