What are the validity requirements for an arbitration agreement?
International Arbitration (2nd Edition)
Arbitration agreements are considered to be contracts under Chilean law (Article 1.545 of the Chilean Civil Code). Therefore, they must comply with the general requirements for contracts, in order to be valid and enforceable, such as the consent and legal capacity of the contracting parties. Also, the subject matter of the agreement must comply with national public policy.
In domestic arbitration there are two types of arbitration agreements. If the parties do not designate the arbitrator, the agreement is known as an arbitration clause (cláusula compromisoria) and if the parties do designate the arbitrator who will have to solve the dispute, the agreement is known as submission agreement (compromiso arbitral).
The Chilean Code of Judicial Organization (CJO) does not regulate the arbitration clause, but only the submission agreement. Under Article 234 of the CJO, the appointment of an arbitrator shall be made in written and the document in which such appointment is made, must contain the following: (i) the individualization of the parties on dispute, (ii) the individualization of the appointed arbitrator(s), (iii) the dispute that is being submitted to arbitration, and finally (iv) the powers that the parties grant to the arbitrator(s) and the place and period of time in which the arbitrator(s) must perform her or his functions.
As for the arbitration clause, it is considered a contract under Chilean law. Therefore, the contracting parties may only manifest their will to submit a future or existing dispute to the resolution of an arbitrator, with no further obligation to determine the arbitrator’s individuality or to comply with specific formal requirements.
In international arbitration, the arbitration agreement is regulated in Chapter II of the International Commercial Arbitration Law No 19.971 (ICAL). Under Article 7(1) of ICAL, the arbitration agreement may be contained in a contract or in a separate agreement. Also, Article 7(2) states that such agreement must be written. Under such provision, an agreement is considered to be written when it is “contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another”.
In order to be valid, the arbitration agreement must refer either to disputes involving economic interests or to disputes, which, although not involving economic interests, may be settled by the parties, provided that said disputes have not been exclusively submitted by a special law to the State courts or to compulsory arbitration.
In addition, the subject matter of an arbitration agreement must be a present or a future dispute, arising from a legal, contractual or non-contractual relationship. Also, in private contracts involving a public entity disputes may only be submitted to arbitration if so authorised by a special act.
Furthermore, the arbitration agreement must be in writing, although not necessarily included in a document signed by the parties. It may simply be inserted in exchanged letters, telexes, telegrams, and other means of communications of which there is a written proof.
Within international arbitration, the arbitration agreement is valid as to its substance if the requirements set out either (i) in the law chosen by the parties to govern the arbitration agreement, (ii) in the law applicable to the subject-matter of the dispute (lex causae) or (iii) in Portuguese law (lex fori) are met (art. 51 LAV).
Pursuant to Article 1226 NCPC, arbitration agreements can be made before the arbitrators, by deed before a notary or by written agreement. Arbitration agreements concluded ex ante are not required by law to be in writing, as long as evidence in writing can be provided showing that parties have agreed on a settlement by arbitration.
Article 1227 of the NCPC provides that the arbitration agreement must specify the intention of the parties to submit their dispute to arbitration, the subject of the dispute and the arbitrators’ names in order to be valid.
A valid arbitration agreement in international arbitration must meet minimum requirements of form and substance. In terms of formal requirements, the arbitration agreement must be made in writing, by telegram, telex, facsimile or any other means of communication allowing it to be evidenced by text. Strictly speaking, signature or exchange of the arbitration agreement is not required as long as the parties' agreement can otherwise be evidenced based on written documents. The revised chapter 12 of the PILA is expected to provide for a relaxation of these formal requirements, allowing for an arbitration agreement to be validly concluded even if only one party fulfils the aforementioned formal requirements.
As regards content requirements, such arbitration agreement must stipulate the parties' intent to resolve a determined or determinable dispute by way of arbitration, thereby excluding the jurisdiction of the state courts.
The same conditions apply to arbitration agreements in domestic arbitration pursuant to art. 357 and 358 CPC.
With regard to the criteria on substance, an international arbitration agreement is deemed valid if it displays the legal requirements for a mutual party intent concerning the essential aspects either based on (i) the law chosen by the parties to specifically govern the arbitration agreement, or (ii) the law governing the subject matter of the dispute (i.e. in general the underlying contract), or (iii) Swiss law.
The explicit agreement to refer the resolution of disputes to arbitration can be provided for in an independent agreement, or in the form of a clause incorporated in a contract (section 1029 (2) ZPO).
An arbitration agreement must be made in writing, either set out in one document, or in exchanged correspondence (inter alia letters, telefax and emails, section 1031 (1) ZPO). In certain circumstances, an arbitration agreement is validly constituted by a document transmitted by one party to another party, or by a third party to both parties, provided that no timely objection was raised (section 1031 (2) ZPO).
The parties can also refer to an arbitration agreement contained in separate general terms and conditions. Even if the arbitration agreement is included in the main contract itself, it might be considered as a “standard term” (as per section 305 (1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB)). In that case, also in B2B-contracts, it may be subject to a specific validity control (sometimes referred to as “fairness test”).
If a certain contract requires notarization, this has no effect on the validity of an arbitration agreement included in such contract.
If one of the parties is a consumer, unless notarized, an arbitration agreement must be a separate document to the main contract, and it needs to be personally signed by the parties (section 1031 (5) ZPO).
In the event that an arbitration agreement does not fulfill the above formalities, it will still be considered a valid agreement to arbitrate, provided that the parties do not object to the tribunal’s competence (section 1031 (6) ZPO).
As regards the validity of an arbitration agreement, the Arbitration Act sets forth primarily that the arbitration agreement shall be in writing. An arbitration agreement "in writing" includes an agreement contained in a document signed by the parties or in an exchange of letters and other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract. Meanwhile, sometimes Ukrainian courts decide the issue of formal validity of arbitration agreement in a highly formalistic way. For instance, in ANT YAPI Turkey v Ukrnekstpulbrut LLC case the court considered the application of the ANT YAPI Turkey for setting aside the arbitral award. The court of appeal decided that the arbitration clause was not valid based on the lack of signature on the Russian version of the Addendum of the Guarantee Agreement (the text of which prevailed) notwithstanding inter alia that the English version thereof was duly executed. This case is now pending before the court of cassation, so there is still a hope that this decision will not illustrate the approach of Ukrainian courts.
As regards the substantial validity of an arbitration agreement, the Arbitration Act does not provide for specific requirements and, therefore, the general rules of contract law apply.
Under the laws of Panama, the arbitration agreement must be in writing.
An arbitration agreement is considered to be in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by the conduct of the parties, or by other means.
An arbitration agreement is also in writing if it is contained in an exchange of statements of claim and the answer or reply in which the existence of an agreement is alleged by one party and not denied by the other.
Moreover, the reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.
Article 203 of the UAE CPC requires that for an arbitration agreement to be valid it must be in writing and specified.
The signatories to the agreement must also have the authority to bind the respective party to undertaking arbitral proceedings and the dispute must be arbitrable.
It is in practice accepted by UAE jurisprudence that an arbitration clause encompassing all disputes that may arise from or be related to the underlying contract is valid.
The need to specify the dispute arises only in instances where the arbitration agreement is entered into after a given dispute has arisen.
Authority to Bind
The accepted position under UAE law is that only the person referred to as “General Manager” in an entity’s trade licence or failing that, any other person empowered by the General Manager through a duly notarised Power of Attorney, would have presumed competence to bind the entity he or she represents to arbitration and to do so to the exclusion of litigation.
Commercial disputes that relate to the registration of real estate, insurance policies and commercial agencies are generally not arbitrable, although there are exceptions and qualifications to the above position.
UAE Off-Shore Jurisdictions
The DIFC Arbitration Law (Article 12) and the ADGM Regulations (Regulation 13) broadly require that the Arbitration Agreement be in writing.
The Arbitration Act provides that the arbitration agreement must be an agreement between two and more parties and that it must provide for resolution of the dispute by arbitration. An arbitration agreement providing for arbitration of a future dispute must also relate to an identified legal relationship, e.g. a contract, in order to be valid.
There are no requirements that an arbitration agreement be made in a particular form. Oral arbitration agreements are thus valid or even arbitration agreements “implied” by virtue of the parties’ conduct or trade customs.
Section 9.1 of the SAA states that an arbitration agreement may adopt the form of a clause in a contract or the form of a separate agreement. Either if the arbitration agreement adopts one form or another, the arbitration agreement shall express the willingness of the parties to submit to arbitration all or certain disputes arising between them in respect of a specific legal relationship, whether contractual or non-contractual.
Therewith, Section 9.2 of the SAA establishes that in case an arbitration agreement is included in a standard form of contract, its validity and its interpretation shall be governed by the rules applicable to such contract.
Section 9.3 of the SAA states that for an arbitration agreement to be valid it should be made: (i) in writing; (ii) in a document signed by the parties; or, (iii) in an exchange of letters, telegrams, telex, facsimile or any other means of telecommunications that ensures that a record of the agreement is kept.
This requirement is fulfilled when the arbitration agreement appears and is accessible for its subsequent consultation in an electronic, optical or any other format.
Regarding international arbitration, Section 9.6 of the SAA specifies that an arbitration agreement shall meet the requirements of the rules of law chosen by the parties to govern the arbitration agreement, or by the applicable substantive law, or by Spanish law in order to be reputed valid (and the dispute to be arbitrable).
Serbian law provides that an arbitration agreement shall be invalid in the following cases:
(i) If it relates to a matter which is not arbitrable under Serbian law;
(ii) If it has not been concluded in the form provided by the law (i.e. written form);
(iii) The parties did not have the legal capacity to enter into an arbitration agreement.
(iv) Arbitration agreement has been concluded under threat, duress, due to fraud or in error.
(v) If the arbitration agreement provides for an even number of arbitrators.
(vi) If the arbitration agreement is unspecified, i.e. the arbitration agreement has to concern disputes arising out of a certain specified legal relation – it cannot concern all future relations between the parties.
An arbitration agreement can arise in the following ways:
- Two or more persons can agree to submit to an arbitration of one or more arbitrators, any controversy existing between them at the time of the submission, which may be the subject of an action.
- The parties to any contract can agree to settle by arbitration a controversy thereafter arising between them.
Such submission or contract will be valid, enforceable, and irrevocable, save on such grounds that exist under the law for revocation of any contract.
A contract or a submission to arbitrate, must be in writing and signed by the parties or their lawful agents.
Separate arbitration agreement
Under the law, an arbitration agreement is valid so long as it is in writing and signed by the parties to the agreement, or by their lawful agents. Therefore, a clause in the main contract is sufficient and a separate arbitration agreement is not needed, so long as the requirements for a contract are met.
Furthermore, the ADR Act (which adopted the 1985 UNCITRAL Model Law in its entirety) provides that an arbitration agreement can be in the form of an arbitration clause in a contract or in a separate agreement.
The 1985 UNCITRAL Model Law states that the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement, provided that the contract is in writing and the reference is such as to make that clause part of the contract.
In addition to the foregoing rules, the arbitration agreement must also satisfy the requirements under the general law on contracts:
a. It must be mutually agreed upon by the parties;
b. It must not be contrary to any law, morals, good customs, public order, or public policy;
c. There must be no showing that the parties have not dealt with each other on equal footing.
The validity requirement of an arbitration agreement is as follows (as per Section 7 of the Arbitration & Conciliation Act, 1996):
(i) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement
(ii) An arbitration agreement shall be in writing
(iii) An arbitration agreement is in writing if it is contained in-
a) A document signed by the parties,
b) An exchange of letters, telex, telegrams or other means of telecommunications which provide a record of the agreement
c) An exchange of statements of claim and defence in which existence of the agreement is alleged by one party and not denied by the other
(iv) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.
An arbitration agreement or clause is required. Under the LAM, an arbitration agreement is a covenant in writing by which the parties decide to submit to arbitration any controversy or certain controversies that have arisen or that may arise between the parties in relation to a specific legal, contractual, or non-contractual relationship. In addition, arbitration agreements must basically state a) the manner in which arbitrators are selected, b) waiver to regular courts, c) rules governing the arbitration, d) unequivocal determination of the legal relationship to be subjected to arbitration, and, e) it is advisable to include provisions on whether the arbitration is in equity or in law, and on the confidentiality of the arbitration proceeding. Besides, in the case of arbitration agreements on civil indemnifications derived from offences or quasi-offences (non-contractual liabilities), the arbitration agreement must expressly make reference to the facts that the arbitration will concern.
International Arbitration. Arbitration proceedings are international when the parties so agree and provided any of the following requirements is met: a) At the time of entering into the arbitration agreement the parties are be domiciled in different States; b) When the place of compliance of a substantial part of the obligations or the site to which the matter of the dispute is more closely related is located outside the State where at least one of the parties is domiciled; or, c) When the matter of the dispute refers to an international commercial transaction that can be subject of settlement and does not affect or causes damage to the national interests or of the community. In international arbitration, the parties to an international arbitration agreement are free to set forth directly or through reference to an arbitration regulation, every matter concerning arbitration proceedings, including the appointment of arbitrators, the rules of procedure, the language, the applicable law and jurisdiction, the place of the arbitration, which may be located in Ecuador or in a foreign country
A valid arbitration agreement must be in writing (but could be established also through exchanges of written correspondence). If the arbitration agreement was concluded after the dispute, then the arbitration agreement must specify the dispute to be resolved. If the parties incorporate within their agreement a model form of contract that includes an arbitration provision, they must expressly confirm that they also incorporate the arbitration provision. An administrative contract with a public body requires explicit ministerial approval of the arbitration clause.
There are other additional non-mandatory but recommended best practice provisions not mentioned in the Arbitration Law. The Arbitration Law sets an 18-month time limit for rendering awards (unless otherwise agreed by the parties). If the parties foresee the need for a longer period, they should specify a longer period in their agreement. If the parties want to grant the tribunal the power to award interim measures and injunctive relief this must be expressly provided for in the arbitration provision. If the parties wish for the proceedings to be conducted in a language other than Arabic, it is recommended that this be expressly stated (the default, absent agreement or a decision by the tribunal, is Arabic).
An agreement to arbitrate may be made in nearly any commercial matter. The agreement may concern a dispute that has already arisen, or the parties may agree that all potential disputes in a particular relationship, typically a contract, shall be resolved by arbitration. Today, most commercial contracts contain an arbitration clause. There are no formal requirements to such agreements, and even an oral agreement to arbitrate is in principle enforceable. However, the importance normally attached to an agreement to arbitrate, will inevitably lead the courts to look for clear evidence that an arbitration agreement has in fact been entered into. In consumer disputes, arbitration agreements may only be entered into after the dispute has arisen.
The arbitration agreement may be concluded in the form of an arbitration clause or in the form of a separate arbitration agreement.
The Arbitration Act provides that the arbitration agreement needs to be concluded in writing. Written form requirement is satisfied if the agreement is contained in documents signed by the parties or in an exchange of letters, telex, faxes, telegrams or other means of telecommunication that provide a record of the agreement, irrespective whether signed by the parties.
It shall be also deemed that an arbitration agreement is concluded in writing: a) if the arbitration agreement is contained in one party’s written offer, or b) if one party refers to previously concluded oral arbitration agreement in written notice and other party fails to raise timely objection against such offer/notice and such failure to object may be considered to constitute acceptance of the offer/content of the notice according to usages in commerce.
Further on, it is possible agree on arbitration by making incorporation by reference. There are also specific provisions for consumer contracts and bill of lading.
Pursuant to section 2(1) of Cap.4, “an arbitration agreement” is defined as a written agreement to submit present or future disputes to arbitration. Similarly, section 7 of the ICA Law states that in order for an arbitration agreement to be valid it must be in writing. An agreement is deemed to be in writing if it is contained in a document signed by the parties, or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. An arbitration agreement may be in the form of an arbitration clause duly incorporated into a contract, or stand on its own as a separate agreement.
Other than the requirement for the arbitration agreement to be in writing, there are no other formal statutory requirements in order for the arbitration agreement to be enforceable. However, according to the common law principles which are applied by the Cyprus Courts, in order for an arbitration agreement to be valid, its terms must be clear and certain. An arbitration agreement is void if its terms are uncertain or if there is no clear reference to arbitration.
In domestic arbitration, an arbitration agreement must be in writing to be valid (Article 1443, CCP).
In international arbitration, French law does not impose any formal requirements, and the arbitration agreement does not need to be in writing or in any specific form (Article 1507, CCP). However, it is easier to prove the existence of an arbitration agreement where there is a writing.
For both domestic and international arbitration, there are no substantive requirements, apart from the requirement that the underlying dispute be arbitrable (see Question 11).
Pursuant to Articles 807 and 808 CCP, an arbitration agreement is null and void if not made in writing. An agreement to arbitrate may be in the form of a specific agreement entered into by the parties once a dispute has arisen, or of an arbitration clause contained in a contract. In addition, in the case of an agreement to arbitrate a dispute that has already arisen, the parties must specify the object of the dispute (Article 807 CCP).
By section 1(1) of the ACA, an arbitration agreement, to be valid, must be in writing or otherwise evidenced in writing. Further, both parties must have mutually agreed or consented to the arbitration agreement and the arbitration agreement must be in respect of a commercial relationship. The parties must have legal capacity to enter into the arbitration agreement as with every other contract, the arbitration agreement must satisfy the basic legal requirements of a valid contract of offer, acceptance, and consensus ad idem.
For an arbitration clause to be valid, the following conditions must be (cumulatively) met:
- The arbitration agreement must significantly specify the parties, ie those that shall be bound to resolve a dispute by arbitration need to be determinable.
- The parties must significantly specify the arbitrable dispute(s) (their subject matter or the legal basis for future disputes) they wish to submit to arbitration under the exclusion of domestic courts.
- The clause must be put in writing. It can feature in a document signed by the parties or in letters, telefaxes, e-mails or other forms of communication exchanged between the parties, which provide the evidence of an agreement. Shortcomings in form may be cured where the parties enter into the arbitration without objection.
- There are additional requirements where consumers or employees are involved (sections 617 and 618, respectively, of the Austrian Code on Civil Procedure).
As regards international commercial arbitral proceedings having their seat in Greece, articles 7 para. 3 and 5 L. 2735/1999 incorporate verbatim the provisions of article 7 para. 2 of the Model Law. Hence, both the written form requirement as well as the exchange of letters requirement are preserved. The latter casts doubt on the validity of the conclusion of an arbitration agreement by means of an oral or tacit acceptance of a respective offer made in writing. At the same time though, article 7 L. 2735/1999 introduces three provisions unknown to the Model Law seeking to ease the written form requirement or the consequences of its absence: (a) In para. 4 it is provided that the form requirement shall be deemed to have been fulfilled in case an arbitration agreement concluded orally is recorded in a document transmitted from one party to the other party or by a third party to both parties, assuming that no objection was made in good time, and that the contents of such documents may be deemed to consist part of the contract with common usage. This provision is similar to Section 1031 (2) of the German Code of Civil Procedure, (b) In para. 6 it is provided that the issuance of a bill of lading making explicit reference to an arbitration clause in a charter party constitutes a valid arbitration agreement. This provision is similar to the former Section 1031 (4) of the German Code of Civil Procedure, (c) In para. 7 it is provided that the lack of written requirement is remedied in case the parties participate in the arbitration proceedings without raising any objection – reservation as to it. This provision is a reproduction of the provision of article 869 para. 1 of the GrCCP controlling domestic arbitration. It is obviously similar to the provision of the Model Law (also incorporated in article 7 para. 3 of Law 2735) that an arbitration is in writing in case it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another.
In relation to domestic arbitration, article 869 para. 1 of the GrCCP adopts also both the written form requirement as well as the exchange of documents requirement. It should be noted that said provision explicitly demands with regard to the exchange of documents (letters, facsimiles etc.) that each of them be signed by the parties. Said provisions of Law 2735/1999 and of Model Law relaxing the written form requirement are unknown to the GrCCP. It is provided though, as mentioned before, in said article, that in case the parties participate in the proceedings without making any reservation or objection the lack of written form requirement is remedied.
Under the FAA, an arbitration agreement must be in writing. To be valid, however, a written agreement need not necessarily be signed or incorporated in a signed contract. For example, the Delaware Chancery Court recently recognized the validity of an arbitration agreement reflected in an exchange of emails between counsel for the contracting parties. Gomes v. Karnell, No. 11814-VCMR (Del. Ch. Nov. 30, 2016). Beyond the writing requirement, the only permissible validity requirements are those imposed upon all contracts by the state law that governs the arbitration agreement (typically the governing law of the main contract or, in the absence of an express choice of law by the parties, the law of the state in which the arbitration is seated).
Under the Israeli law, for an arbitration agreement to be valid and enforceable, it must meet, inter alia, the following requirements:
(a) The agreement should be in writing (this requirement may also be reflected in an exchange of letters or electronic mail).
(b) The agreement to submit the issue to arbitration may be made in an arbitration agreement with respect to a specific matter that relates to the dispute between the parties, or as a clause in a general agreement with respect to it was agreed that in case of a dispute between the parties in connection with the agreement, the dispute will be deliberated in arbitration.
(c) The parties to the arbitration agreement are required to have been qualified to enter into the agreement, otherwise no agreement will be deemed to have been made.
(d) Full consent between the parties to submit the dispute for deliberation in arbitration is required.
(e) The subject matter of the arbitration must be legal, since under the Israeli law, an arbitration agreement in a matter that cannot be a subject for an agreement between the parties, such as an illegal matter, is invalid.
To fall within the scope of the 1996 Act, an arbitration agreement must be in writing or evidenced in writing. This includes an oral agreement to arbitrate by reference to ‘terms which are in writing’ (s.5(3) of the 1996 Act).