ASES Havacilik Servis ve Destek Hizmetleri AS v Delkor UK Ltd [2012] EWHC 3518 (Comm), a decision of Hamblen J.A., was essentially a question of fact which of the two arbitration clauses in the documents offered by each of the parties took precedence. The main interest of the case lies in the learned judge`s approach to the formalities of an appeal against jurisdiction under section 67 of the Arbitration Act 1996. The U.S. Supreme Court has taken another step to strengthen the applicability of private dispute settlement agreements. In a case that arises outside the context of employment, the Court held that a contract may be invalid in any other respect, but that the arbitration provisions are separable, can continue to exist and can be enforced. For employers who implement conflicting agreements to arbitrate workplace claims, this decision indicates the strength of these provisions, regardless of the legal adequacy or validity of other contractual terms. In the case of international commercial arbitration, in addition to the above: Simply put, the parties must ensure that the arbitration agreement is crystal clear and leaves no room for creative and ingenious misinterpretations. Your intention to resolve disputes through arbitration and the manner in which such arbitration is to be conducted must undoubtedly be enforced. It must be remembered that the devil can and often lies in the details.
The first issue to consider when negotiating the arbitration agreement is the subject`s capacity. The arbitration agreement is valid only if it is signed by parties with full civil capacity, and these parties must have jurisdiction, including through the exchange of requests and statements of self-defense indicating that there is an agreement proposed by one party and not rejected by the other party. The case of Yemena Gas [2017] NSWSC 765 shows how important it is to clearly formulate the arbitration agreement so as not to meet the requirements of Article 7 of the Act. An application for an injunction against an action to limit a foreign proceeding for alleged breach of an arbitration clause may result in the English courts ruling on the validity or nullity of the arbitration clause. Midgulf International Ltd v Group Chimice Tunisien [2009] EWHC 963 (Comm) shows that, in such circumstances, the question of jurisdiction is dealt with by the courts and not by the arbitrators. His Honour distinguished the clause from the clauses contained in Manningham City Council v Dura (Australia) Constructions Pty Ltd [1999] 3 VR 13 (“Manningham”) and Mulgrave Central Mill Company Ltd v Hagglunds Drives Pty Ltd [2002] 2 Qd A 514 (hereinafter “Mulgrave”), in cases where the clauses were considered valid arbitration agreements in circumstances of choice. [42] – [43] indicates that the substantive requirements of an arbitration agreement are set out in Section I (see paragraphs 2(b) to (e)). The law gives the parties enormous freedom in choosing how they prefer to arbitrate. This is often fatal because most parties do not care enough about the content of this very important clause.
The parties to an arbitration agreement may choose, among other things, the number of arbitrators, their qualifications, the seat of the arbitration, the rules to be followed, the type of hearings that may take place, and even agree that the arbitrator will make an unfounded award (as illogical as it may seem). As mentioned above, the arbitration agreement must identify the parties, the existing or future dispute(s) and the legal relationship (contractual or non-contractual) from which the dispute(s) arose or could arise. In addition to the liberal approach, the draft amendment also included a waiver clause similar to article 7, paragraph 5, of the Model Law and provided that if one party to the arbitration claims that there is an arbitration agreement and the other party does not deny it, the arbitration agreement will be considered to exist between the parties (see article 21 of the draft amendment). In Heifer International Inc v Christiansen [2007] EWHC 3015 (TCC), its Honorary Judge Toulmin QC, who faced requests for suspension from the respondent in response to legal proceedings initiated by the plaintiff, had to answer a number of questions about the validity and inclusion of alleged arbitration clauses in the various contracts between the parties. The Court also considered the effects on arbitration terms of the 1999 Unfair Terms in Consumer Contracts Regulations. In the event that an arbitration agreement is invalid, the competent court will accept a case based on a request by one of the parties for the settlement of disputes. expressed through arbitration clauses in contracts or separate agreements; The American Arbitration Association provides the following model for an arbitration clause:[5] In our previous article, we discussed the issue of “fragmentation” and its impact on a request to suspend an ongoing arbitration. In this article, we will examine the broader considerations that apply to requests to stay an ongoing arbitration, focusing on the request for a valid arbitration agreement. Arbitration agreements are governed by the generally applicable principles of contract law.17 Such agreements are therefore subject to the substantive validity requirements that are customary for any type of contract. Article II.3 of the New York Convention provides that an arbitration agreement may not be recognized or enforced if it is held to be “null and void, ineffective or unenforceable”.
The relationship between the elements of section 9 of the Arbitration Act 1996, which requires a court to stay its proceedings if there is a valid and enforceable arbitration clause with respect to the dispute, is a matter of some difficulty. The lengthy judgment of Aikens LJ, speaking on behalf of the Court of Appeal of the joint-stock company “Aeroflot Russian Airlines” v. Berezovsky [2013] EWCA Civ 784, provides a welcome clarification. The parties must also decide whether or not to refer disputes to an arbitration institution instead of ad hoc arbitration. It should be noted here that institutional arbitration in India has now matured and renowned institutions such as the London Court of International Arbitration and the Singapore International Arbitration Centre are present in India. English law goes even further. Under section 6 of the English Arbitration Act 1996, an “arbitration agreement” means “an agreement to be submitted to present or future disputes (whether contractual or not)”. English law does not require that the agreement be necessarily in writing, although an oral agreement can be problematic.
French law could perhaps be seen as the upper limit of liberalism. According to the amended Code of Civil Procedure, for domestic arbitration, an arbitration agreement must be valid in writing, and for international arbitration, “an arbitration agreement is not subject to any requirement as to its form” (Article 1507). .