The Arbitration Agreement

Front 1

Introduction

Back 1

- Purpose

- ML 7.1

- Elements of the AA

Front 2

Purpose

Back 2

The Arbitration agreement concerns which law should be applied to interpret it and the obligations and scope of it on the parties

Front 3

ML 7.1

Back 3

Refers to the agreement to arbitrate in the present or future tense

Front 4

Elements

Back 4

Agreement to arbitrate, the seat, procedure, composition, choice of law

Front 5

Obligations

Back 5

- Ust Kamenogorsk

- William Co v Chu

Front 6

Ust Kamenogorsk

Back 6

An agreement to arbitrate is an agreement not to litigate

Front 7

William Co v Chu

Back 7

Parties may elect between arbitration or litigation, but once one has been chose, both are bound to stick to it

Front 8

Interpretation

Back 8

- Chadbury v PG

- ICC 7920

- PT Tri MG

- Born

- Mitsubishi

- Fiona Trust

Front 9

Chadbury v PG

Back 9

An example of an AA with poor drafting. "Arbitration as per the laws of the EU". However was still interpreted in favour of arbitration.

Front 10

ICC 7920

Back 10

There is generally a strong assumption to give effect to the intentions of the parties in the tribunal.

Front 11

PT Tri MG

Back 11

Look to the substance of the AA not the form. Here an agreement stipulating that Singapore courts had supervisory jurisdiction meant that the agreement was in Singaporean law.

Front 12

Born

Back 12

Interpretations will generally follow standard contractual rules of interpretation.

Front 13

Mitsubishi

Back 13

Any doubts as to validity of the AA should always be read as in favour of arbitration

Front 14

Fiona Trust

Back 14

The aim of arbitration and the AA is to uphold certainty. If parties want to litigate, they must expressly state so. If they do not, then assume arbitration is what they want.

Front 15

Law governing the AA

Back 15

- Formal Validity

- Material Validity

- Governing Law

- Musawi

Front 16

Formal Validity

Back 16

AAs must be written and signed to be valid (NYC 2.1)

Front 17

Material Validity

Back 17

Must check whether the contract is materially void for duress or mistake and see if the AA is as well

Front 18

Governing law

Back 18

Consider if the law is different from the seat

Front 19

Musawi

Back 19

The law of the arbitration must be the law of a country, not religion for example (AAS46)

Front 20

Absence of Choice

Back 20

- Sul America

- Arsonovia

- Firstlink GT

Front 21

Sul America

Back 21

The English courts will apply a three stage test to ascertain what law governs the AA. 1) Express choice 2) Implied choice 3) Law of closest connection. Here it was held that the parties had not expressly chosen Brazilian law as their law required both parties to consent to it. English law was held to be implied.

Front 22

Arsonovia

Back 22

Imply the law of the AA if there are no other counter indications. E.g. omitting to include some parts of the IAA here was indicative of the rest of it applying.

Front 23

First link Gt

Back 23

Two stage international test: 1) Express Choice 2) Law of closest connection - This approach is preferred by the NYC

Front 24

Scope

Back 24

- Fiona Trust

- Hoffman

- Hope

Front 25

Fiona Trust

Back 25

Assume all disputes fall under the same arbitration

Front 26

Hoffman

Back 26

Rational businessmen intend all disputes to be solved in one place, this makes logical sense.

Front 27

Hope

Back 27

Unless expressly agreed otherwise, assume the arbitration will cover all disputes

Front 28

Separability

Back 28

- ML 16.1 AA7

- Fiona Trust

- Born

- McNeil

- Bay Hotel

Front 29

ML 16.1 AA7

Back 29

AA is independent from the contract it is within

Front 30

Fiona Trust

Back 30

AA is distinct agreement void only on relatable grounds to the AA, not the contract

Front 31

Born

Back 31

Practical reasonableness aims to make the AA valid despite the contract being void

Front 32

McNeill

Back 32

The AA will likely be void if the contract is void for duress or mistake

Front 33

Bay Hotel

Back 33

Concerned the issue of separability as the seat was determine by the contract.

Front 34

Competence Competence

Back 34

- UNCITRAL 23.1 ML16 AA30

- Collins

- Dallah

- Gaillard

- Kronke

- Gaillard

Front 35

UNCITRAL 23.1 ML16 AA30

Back 35

Tribunals have competence to rule on their own jurisdiction

Front 36

Collins

Back 36

International importance, but the jurisdiction is not final

Front 37

Dallah

Back 37

Competence can only be asserted if the parties have submitted their questions to arbitration.

Front 38

Gaillard

Back 38

Competence determination depends solely on the party agreement, if they have not asserted a question, the tribunal cannot have jurisdiction

Front 39

Kronke

Back 39

Courts only adjudicate when no tribunal has been framed. Only allowed to interfere when the AA is manifestly null and void.

Front 40

Gaillard

Back 40

Courts are to refrain from engaging in arbitration examination until the tribunal has been constituted.