Enka v Chubb allowed the Supreme Court to clarify certain principles in the application of the common law test. The most important part of the judgment is the confirmation that if the arbitration agreement does not define the law applicable to it, but is in a broader contract with a choice clause in the law, that choice is generally considered an extension of the arbitration agreement. This is a surprisingly common scenario, as the parties generally agree to a contract (for example for the sale of goods) with an explicit choice of law (for example. B English law), then a compromise clause in the contract, forgetting that the compromise clause is a separate agreement with the contract in which it is located. Restrictions on discharge that the worker can obtain in arbitration proceedings against a public court, a provision of a work application that requires the plaintiff, but not the employer, to submit all disputes to arbitration, was both procedural and materially unfair and therefore unenforceable, the California Court of Appeal, Thirdlate Appel District ruled. Wisdom v. AccentCare, Inc., No. C065744 (Cal. Ct.
Around January 3, 2012). According to the Tribunal, the agreement is procedurally unacceptable, given that the Tribunal found that the applicants did not have the opportunity to negotiate their terms, that the applicable arbitration rules were not provided for and that the employer did not explain the importance of the agreement. The agreement is also unacceptable on its merits, since, unlike the applicant, the employer was not required to assert rights before an arbitration procedure. Therefore, the Court of Appeal upheld the order, the refusal of arbitration. No no. But maybe you`ll have to. So what? As mentioned in the previous question, you have a difficult decision to make, even if regardless of whether or not you sign the “agreement,” you could still be bound to that. All that can be said in generally fair is that the higher the cost to the worker to engage in arbitration, the greater the likelihood that the court will beat the arbitration provision as unenforceable. The tendency is not to enforce agreements that impose higher costs on employees than the employee would normally have to pay in court. If there is no legal choice under the arbitration agreement and there is no other choice, since it was made by the parties (for example. B the broader contract has no legal choice), the law applicable to the arbitration agreement will be the law with which the arbitration agreement is most closely linked.
In practice, the Supreme Court suggests that, in most cases, it will be the right of the place of arbitration, as chosen in the compromise clause. In order to determine whether an arbitration agreement is procedurally unacceptable, the Tribunal first asks whether the contract is a contract, that is, a standardized contract developed by the party with the higher bargaining power and which requires the other party to be bound by the contract as written. With regard to the absence of material scruples, the Court found that the agreement was not going to clean up reciprocity because the employer was not prepared to settle its rights. To emphasize the lack of reciprocity, the Court of Appeal found differences between the arbitration agreement and another non-arbitration agreement in which the employer also accepted arbitration. Accordingly, the Tribunal found that the arbitration agreement was materially unacceptable and therefore unenforceable. It upheld the order to refuse arbitration. Standard arbitration agreements rarely provide for the legislation in place in the arbitration agreement. But problems can arise if it is not dealt with in the agreement – it is a good practice. The English courts apply a three-step test for the determination of the law relating to a compromise clause formulated by the Court of Appeal in Sulamerica CIA Nacional de Seguros SA et al. against Enesa Engenharia SA et al  EWCA Civ 638.