International Commercial
Arbitration
The arbitration agreement
University of Oslo
Giuditta Cordero-Moss, Ph.D., Dr.Juris
Professor, Oslo University
Arbitration agreement
• Basis for the arbitral tribunal’s jurisdiction
Recognition and effects
•
New York Convention Article II
1. Each Contracting State shall recognize an agreement […] under which
the parties undertake to submit to arbitration all or any differences
which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not, concerning a
subject matter capable of settlement by arbitration.
2. […]
3. The court of a Contracting State, when seized of an action in a matter in
respect of which the parties have made an agreement within the
meaning of this article, shall, at the request of one of the parties, refer
the parties to arbitration, unless it finds that the said agreement is null
and void, inoperative or incapable of being performed.
Recgnition and effects II
• UNCITRAL Model law art 8, vogl § 7
(1) A court before which an action is brought in a matter
which is the subject of an arbitration agreement shall, if a
party so requests not later than when submitting his first
statement on the substance of the dispute, refer the
parties to arbitration unless it finds that the agreement is
null and void, inoperative or incapable of being
performed.
Which law determines the validity
of an arbitration agreement?
• New York Convention art V
1. Recognition and enforcement of the award may be
refused […] only if […] :
(a) The […] agreement referred to in article II […] is not
valid under the law to which the parties have subjected it
or, failing any indication thereon, under the law of the
country where the award was made;
Formal validity
• New York Convention article II
1. Each Contracting State shall recognize an
agreement in writing […]
2. The term "agreement in writing" shall include an
arbitral clause in a contract or an arbitration
agreement, signed by the parties or contained in
an exchange of letters or telegrams.
UNCITRAL Recommendation of 7.7.06
on the interpretation of article II(2)
1.Recommends that article II, paragraph 2,
of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards,
done in New York, 10 June 1958, be
applied recognizing that the circumstances
described therein are not exhaustive;
UNCITRAL Model Law, article 7
Option I
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if its content is recorded in any form,
whether or not the arbitration agreement or contract has been concluded
orally, by conduct, or by other means.
(4) The requirement […] is met by an electronic communication if the
information contained therein is accessible so as to be useable for
subsequent reference; […]
(5) Furthermore, […] 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.
(6) 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.
UNCITRAL Model Law, article 7
Option II (vogl § 10)
“Arbitration agreement” is 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.
Development
• Traditionally: New York Convention art II
preferred as a uniform standard which is
arbitration-friendly
• Now: state law may be more arbitrationfriendly
• State law may be applied under New York
Convention article VII
Substantial validity
• Any dispute “arising under” this contract:
– Only disputes on contractual rights and
obligations
• Any dispute “in relation to” this contract/
“connected with” this contract
– Also tort, statutory or other non-contractual
claims connected with the contractual
relationship
Overseas Union Insurance Ltd v AA Mutual International Insurance Co Ltd
[1988] 2 Lloyd’s Rep 63
Fiona Trust & Holding Corporation and others v
Privalov and others [2008] 1 Lloyd’s L Rep 254
• These fine distinctions reflect no credit upon
English commercial law
• The time has come to draw a line under the
authorities to date and make a fresh start
• If the parties wish to have issues as to the
validity of their contract decided by one tribunal
and issues as to its meaning or performance
decided by another, they must say so expressly
Model arbitration clauses
• Any dispute arising out of or in connection with
this contract, including any question regarding
its existence, validity or termination
http://www.lcia.org/Dispute_Resolution_Services/LCIA_Recommended_Cla
uses.aspx
• Any dispute, controversy or claim arising out of
or in connection with this contract, or the breach,
termination or invalidity thereof
http://sccinstitute.se/engelska-16.aspx
Model clauses
• Any dispute, controversy or claim arising out of
or in relation to this contract, including the
validity, invalidity, breach or termination thereof
https://www.sccam.org/sa/en/clause.php
• Any dispute, controversy or claim arising out of
or relating to this contract, or the breach,
termination or invalidity thereof
http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arbrules-revised-2010-e.pdf
Arbitration clause
• Sufficiently precise to permit identifying the
scope of the dispute and the type of
arbitration
Separability
• UNCITRAL Model Law art 16 vogl § 18
(1) For [the] purpose [of determining
jurisdiction], an arbitration clause which
forms part of a contract shall be treated as
an agreement independent of the other
terms of the contract
Separability
• The arbitration agreement is not affected if
the main contract is void, terminated,
illegal etc.
Legal capacity of the parties
New York Convention article V:
1. Recognition and enforcement of the award may be
refused […] only if […]:
(a) The parties to the agreement referred to in article II
were, under the law applicable to them, under some
incapacity […];
Legal capacity
• Dallah Real Estate & Tourism Holding Co
v Ministry of Religious Affairs, Government
of Pakistan, [2010] UKSC 46
• State of Ukraine v Norsk Hydro ASA, Svea
Hovrätt, 17 December 2007, T 3108-06
Arbitrability
• UNCITRAL Model Law art 1(5)
• This Law shall not affect any other law of this State by
virtue of which certain disputes may not be submitted to
arbitration or may be submitted to arbitration only
according to provisions other than those of this Law.
• Vogl § 9
• Disputes on matters within the parties’ free disposal are
arbitrable, including private law effects of competition
regulation
Arbitrability:
• From second look doctrine
• Mitsubishi Motors Corp v Soler Chrisler-Plymouth, Inc., 473 U.S.
614 (1985) and Scherk v. Alberto-Culver Co., 417 U.S. 506, to
• To ensuring application of rules
• Belgium, Cass., 16.11.06, Germany, OLG München, 17.5.06,
U.S., Thomas v Carnival Corp, England, High Court 30.10.09
Kompetenz-Kompetenz
• Model Law art 16
(1)The arbitral tribunal may rule on its own
jurisdiction, including any objections with
respect to the existence or validity of the
arbitration agreement
The ultimate decision is of the courts
• Model Law art 8 vogl § 7
(1) A court before which an action is brought in a matter which is the subject of
an arbitration agreement shall […] refer the parties to arbitration unless it
finds that the agreement is null and void, inoperative or incapable of being
performed.
The ultimate decision is of the courts
• Model Law art 34 vogl § 43
(2) An arbitral award may be set aside by the court […] :
(a) […]
(i) […] the arbitration agreement is not valid […]
(b) […]
(i) the subject-matter of the dispute is not capable of settlement by arbitration
• Model Law art 36 Vogl § 46
1. Recognition and enforcement of an award may be refused […]:
(a) […]
(i) […] the arbitration agreement is not valid […]
(b) […]
(i) the subject-matter of the dispute is not capable of settlement by arbitration
The ultimate decision is of the courts
• New York Convention art V
1. Recognition and enforcement of the award may be refused […]:
(a) The […] agreement […] is not valid […];
[…]
2. […]
(a) The subject matter of the difference is not capable of settlement by
arbitration […]