What are the validity requirements for an arbitration agreement under the laws of your country?
The requirements as to arbitration agreements in Austria are very much akin to those stipulated in the Model Law and in the New York Convention. The arbitration agreement must contain the following minimum requirements:
(a) The parties to the agreement must be determinable; (b) the subject matter of the dispute or the legal basis for future disputes must be be determinable; and (c) the parties must agree to submit their disputes to arbitration, i.e. a final and binding decision under the exclusion of domestic courts.
As regards the form of the agreement, an arbitration agreement must be concluded in writing. A reference to general terms and conditions of a party including an arbitration clause is sufficient to comply with the form requirement. Defects of form may be remedied if the parties enter into the proceedings without objecting thereto.
As stated above under question 4, the Austrian arbitration law contains specific provision for arbitration in consumer and employment related disputes. These include several additional formal requirements of the arbitration agreements.
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).
The arbitration agreement must be in writing, but Portuguese law adopts the broad definition of written form established in the New York Convention and in the Model Law. The Law further adopted the incorporation theory, providing that a referral to an arbitration agreement included in a different document is enough to grant jurisdiction to the arbitral tribunal.
Under Romanian law, a valid arbitration agreement must be concluded in writing, either under the form of an arbitration clause, stipulated in the main contract, or of a separate agreement called compromise. However, the Code of Civil Procedure sets a broadly construed ‘written form’ requirement for arbitration agreements, to the effect that an agreement to arbitrate may be reached following an exchange of correspondence or an exchange of procedural acts (after the commencement of arbitral proceedings).
To the same effect, the rules of arbitration of CICA also provide that the arbitration agreement may also originate in the filing by the claimant of a request for arbitration and the agreement by the respondent that such request be settled by CICA.
The code provides that an arbitration agreement should be authenticated by a notary public if it refers to disputes regarding the transfer of ownership rights/ other rights in rem over an immovable asset. Non-compliance with this formal requirement leads to the absolute nullity of the arbitration agreement. This legal provision has been heavily criticised since the code entered into force and it is expected to be repealed.
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.
Under the CPC, an arbitration agreement must meet certain requirements, namely:
- it must be evidenced in writing;
- the parties must have the legal capacity to dispose of the right in dispute, and if the agreement is executed through an agent, the agent must have specific authority to bind the principal to arbitration;
- the subject matter of the dispute must be arbitrable – according to the CPC a matter is only arbitrable when conciliation is possible, unlike questions of public policy which must be resolved in the national courts; and
- any special formalities must be satisfied, eg arbitration agreements regarding insurance policies must be made separately from the general terms and conditions of the policy.
The DIFC Arbitration Law and ADGM Arbitration Regulations are more in line with international best practice and have few validity requirements.
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.
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) by the law governing the subject matter of the dispute (i.e. in general the underlying contract), or (iii) by Swiss law.
Arbitration agreement is defined in section 2 of the Act as meaning an agreement between 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.
There are three essential elements of an arbitration agreement. It must: (1) submit the matter to arbitration; (2) sufficiently identify the intended scope of jurisdiction; and (3) be related to a “dispute”. The Supreme Court has also held that an arbitration agreement must not provide for invalid recourse against an arbitral award (Carr & Anor v Gallway Cook Allan  NZSC 75). An arbitration clause can be in a contract or separate agreement, and oral arbitration agreements are valid and enforceable (article 7 of Schedule 1). Courts will apply standard principles of contract interpretation when determining whether an agreement provides for arbitration as opposed to, say, expert determination (136 Fanshawe Ltd v Wilson Parking New Zealand Ltd  NZHC 1854). Courts will apply a broad purposive approach to arbitrability (Bidois v Leef  3 NZLR 474 (CA)).
There are, however, special enforceability requirements under s 11(1) of the Act for consumer arbitration agreements, which arise when a person enters a contract containing an arbitration agreement as a consumer. To be enforceable against the consumer, the consumer must agree to be bound by the agreement under a separate written agreement, which must disclose which, if any, of the provisions of Schedule 2 do not apply to the arbitration agreement as this would, for example, potentially limit the consumer’s right to appeal to the High Court on a question of law.
An arbitration agreement is valid in Malaysia if it complies with the definition and formality requirements in section 9, AA. The agreement must entail a consensual submission to arbitration of all or certain disputes which have arisen between the parties in respect of a defined legal relationship, whether contractual or otherwise (section 9(1), AA). Save that the arbitration agreement has to be in writing (section 9(3), AA), Malaysian law is amply flexible as to the form of an arbitration agreement, which may be in the form of an arbitration clause or exist as a separate agreement. An arbitration agreement is in writing where it is contained in:
- A document signed by the parties.
- An exchange of letters, telex, facsimile or other means of communication which provide a record of the agreement.
- An exchange of statement 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 also be incorporated by reference (section 9(5), AA). A reference in an agreement to a document containing an arbitration clause shall constitute an arbitration agreement, provided that the agreement is in writing and the reference is such as to make that clause part of the agreement.
The FAA requires agreements to arbitrate to be in writing. However, agreements do not have to be signed or in any particular form. Written agreements include exchanges of letters, emails and faxes. Agreements to arbitrate can be made through a separate agreement from the main contract or be incorporated by reference.
Under the IAA, an arbitration agreement must meet certain requirements, namely:
- it must be evidenced in writing, i.e., recorded in any form (Section 2A);
- a party must not be under some incapacity at the time when the agreement was made (Section 31(2)(a)); and
- it must be valid under the law to which the parties subjected it to or under the law of the country where the award was made (Section 31(2)(b)).
According to Article 4 of Law nº 9.307/96, it is possible to conclude that the arbitration clause can’t be broad enough to submit the signatories to arbitration to any conflict that they be engaged, since that article provides that the arbitration clause is the convention by which the parties to a contract commit to submit to arbitration disputes which may arise in relation to this contract.
In regard to form, determines Brazilian Law that the arbitral clause must be celebrated in writing. In the case of contracts without specific formality unless the use of writing, the clause must be submitted to the general mechanisms provided in the Civil Code for the signing of contracts.
The legislator set rigidly only for the compromissum (submission to arbitration), which, according to Article 9 of Law nº 9.307/96, is the agreement whereby the parties submit a dispute to arbitration by one or more persons, and it can be judicial or extrajudicial.
Also according to this Article 9, the judicial compromissum shall be signed by term in the records before the Judge or the Court where the lawsuit is proceed, and the extra-judicial compromissum shall be signed in particular writing, signed by two witnesses, or public instrument.
In addition, in accordance with Article 10 of Law nº 9.307/96, mandatorily shall appear on the compromissum the name, profession, marital status and domicile of the parties; the name, profession and domicile of arbitrator or arbitrators, or, if it is the case, the identification of the entity to which the parties have delegated the appointment of arbitrators; the matter that will be the object of arbitration; and the place where the award shall be rendered.
Finally, Article 11 of Law nº 9.307/96 provides that the arbitration agreement may contain also the place or places where the arbitration will be developed; the authorization for the arbitrator or arbitrators to decide in equity, if so agreed by the parties; the deadline for submission of the arbitral award; the indication of the national law or corporate rules applicable to arbitration, so when the parties have agreed in this way; the statement of responsibility for the payment of the fees and costs of arbitration; and setting the arbitrator's fees.
Generally, the agreement must be in writing and follow domestic principles of contract formation. For international arbitrations, as provincial and territorial statutes include the Model Law, the agreement must be:
- a document signed by the parties;
- an exchange of letters, telex, telegrams, or other means of telecommunication that provide a record of the agreement; or
- an exchange of pleadings in which the existence of an agreement is alleged and not denied.
For domestic arbitrations, the requirements are set out in provincial legislation.
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.
It must contain the decision of both 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.
The arbitration agreement shall be in writing, meaning that its content is recorded in any form, which can later be accessed in electronic, optic or other platform.
The number of arbitrators must be odd pursuant to art. 12 of the Arbitration Law.
The major requirement for an arbitration agreement according to the Local Law, the arbitration agreement must be in written. Furthermore, Parties’ consent to solve the dispute through arbitration must be explicitly seen and avoid any kind of doubt. It can be an arbitration clause in the main agreement between the parties or a separate arbitration agreement. It must be a written document executed by the parties or a document mutually exchanged by the parties such as letter, telegram, telex or fax; or the defendant does not object to the existence of the arbitration agreement in case the claimant claim that there is an arbitration agreement in its claim statement. Besides, in case the arbitration agreement is signed by a representative, there must be a special authorization granted to the representative to execute the arbitration agreement.
Arbitral proceedings can be initiated only if the involved parties have concluded an arbitration agreement (section 1029 (2) ZPO). The subject matter of the arbitration agreement must be arbitrable pursuant to section 1029 (1) ZPO.
There are only a few formal requirements to arbitral agreements under German law (section 1031 (1) ZPO). The arbitration agreement must be made in writing. Further, it must be included in a signed document, exchanged letters, telefax, copies, telegrams, or in another form of transmitting messages. If one of the parties is a consumer, stricter formalities must be observed, i.e. the arbitration agreement must be a separate document to the main contract (section 1031 (5) ZPO). Only the arbitration agreement must be provided for in this document and no other agreements whatsoever.
Lacks of form will be cured if the parties enter into the arbitral proceedings without raising any objections (section 1031 (6) ZPO).
In order to be valid and enforceable in Italy, an arbitration clause must be agreed in writing and contain the scope of the subject matter of the dispute. Oral arbitration agreements are not valid under Italian law.
An agreement must be evidenced in writing (section 5).
In Ireland, the Arbitration Act has adopted Option 1 under Article 7 of the UNCITRAL Model Law resulting in the requirement that an arbitration agreement must be in writing.
An arbitration agreement is held to be in writing if its content is recorded in writing, including electronic means, whether or not the arbitration agreement or contract has been concluded orally, by conduct or by other means.
Furthermore, an arbitration agreement is considered to be in writing if 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 the other.
Finally, 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 under the general principles of contract law.
The parties to the arbitration agreement must also have capacity to enter into the agreement. The normal rules of contract apply to determine whether or not a party has the required capacity to enter into an arbitration agreement.
In principle, an arbitration agreement must be made in writing or contained in correspondence (including electronic correspondence if it enables the content to be recorded). It may also be incorporated by reference (e.g. in general terms and conditions).
From 10 January 2017, an arbitration agreement with consumers may be concluded only after a dispute has arisen and only in writing.