An intriguing aspect of the decision, and one we noted in our earlier article (see here), is why the Court (and parties) approached the question of whether IMC was a party to the arbitration agreement under Mongolian law, even though the contract in which the arbitration agreement was contained provided for the governing law to be that of Queensland.3
The law that should govern whether or not a person is a party to an arbitration agreement is the law that governs the arbitration agreement, and usually, a governing law provision in the main contract provides a sufficient indicator that the parties intended for that law to govern the arbitration agreement as well.4
This point is important, because jurisdictions differ with respect to how they view the separate legal status of corporations (especially different corporations within the same corporate group) and have different laws with respect to the validity of agreements. What may be seen as an agreement binding a person in one jurisdiction may be seen quite differently in another.
Where it is important for the law to govern the arbitration agreement to be different from the law of the seat of arbitration, it is advisable to include in the arbitration agreement an express clause providing for the governing law of the arbitration agreement.