On 26 October 2021, the Supreme Court of the United Kingdom dismissed the appeal from a 20 January 2020 decision of the Court of Appeal, which had found that an ICC award rendered in Paris could not be enforced in England. The Supreme Court shared the conclusion of the lower court that the arbitrators ought to have applied English law – rather than French law, the law of the seat – to the question whether Kout Food had become a party to the Franchise Development Agreement (FDA) concluded between Kabab-Ji and a third party which had later become a subsidiary of Kout Food.
Both courts found that the express choice of English law as the law governing the FDA extended to the arbitration clause by virtue of the FDA’s broad language, and that this finding was not affected either by the contractual choice of Paris as the seat of arbitration or by the principle of the separability of the arbitration clause, which simply ensured that the chosen means of dispute resolution survived the main agreement being or becoming unenforceable. As a matter of English law, Kout Food had not become a party to the FDA.