Arbitration agreement

Introduction

For international commercial arbitration to take place there are two important conditions – a dispute must be arbitrable and there must be valid arbitration agreement. Arbitration agreement can be defined as an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. Most often, an arbitration agreement is concluded in the form of arbitration clause in a contract. Even if the arbitration clause is contained in the main contract, it is independent. The principle of separability of arbitration clauses is widely recognized and it is one of the most important principles of international commercial arbitration. For arbitration agreement to be valid several elements must be taken into account. The parties must have capacity to conclude arbitration agreement. The arbitration agreement must be valid as regards the form and substance.

The aim of this chapter is to deal with arbitration agreements and their validity. After going through this chapter a student should be able: to define arbitration agreement; to name types of arbitration agreement; to explain the principle of separability; to analyse the capacity of parties to conclude arbitration agreement; to explain what are the formal requirements for arbitration agreements under New York Convention and UNCITRAL Model Law; to analyse the essential requirements of content of arbitration agreements.

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Arbitration agreement
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Arbitration agreement
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Further recommended sources – books

  • BLACKABY, N., PARTASIDES, C., REDFERN, A., HUNTER, M. Redfern and Hunter on International Arbitration. 6th ed. Oxford: Oxford University Press, 2015, Chapters 2, 3.
  • BORN, G. B. International Commercial Arbitration. 2nd ed. Kluwer Law International, 2014, Chapters 2 – 10.
  • GAILLARD, E., SAVAGE, J. Fouchard Gaillard Goldman on International Commercial Arbitration. Kluwer Law international, 1999, Part 2.
  • LEW, J.D.M., MISTELIS, L. A., KRÖLL, S.M. Comparative International Commercial Arbitration. The Hague: Kluwer Law International, 2003, Chapter 6 – 8.
  • MOSES, M.L. The Principles and Practice of International Commercial Arbitration. 3rd ed. Cambridge: Cambridge University Press, 2017. Chapter 2.
  • STEINGRUBER, Andrea M. Consent in International Arbitration. Oxford: Oxford University Press, 2012.

Further recommended sources – Articles, papers, electronic sources

  • BREKOULAKIS, S. Parties in International Arbitration: Consent v. Commercial Reality, In: BREKOULAKIS, S., LEW, J. et al. (eds.) The Evolution and Future of International Arbitration. Kluwer Law International, 2016, pp. 119–160.
  • COMSA, P. At a Crossroads: The Case of Pathological Arbitration Clauses Which Determine a Jurisdictional Fight. Lex ET Scientia International Journal. 2018, Vol. 25, pp. 47–55.
  • GRENIG, J. E. International Commercial Arbitral Agreements. Uniform Commercial Code Law Journal. 2018, Vol. 48, p. 117.
  • KluwerArbitration [online]. Available from: http://www.kluwerarbitration.com/
  • KWOK, D. Breach of Arbitration Agreement and Its Costs Consequences. Arbitration International. 2018, Vol. 34, pp. 149–154.

Further recommended sources – Case law