Arbitration Academy

Party A and Party B enter into an agreement, which includes the

following arbitration clause: “All disputes are submitted to
arbitration.” Is this a (formally) valid arbitration clause?
1) What law is applicable for the determination of the formal validity of the
arbitration agreement?
To determine what law governs the question of formal validity of an arbitration agreement
you have to look at different stages of an arbitration separately.

At the state courts

This is the stage where one party files a claim at a state court and the other party argues that
there is a valid arbitration agreement.
There are three sets of rules that come into consideration. First, you can argue that the New
York Convention (NYC) is applicable to determine the formal validity. In its Art 2 (1) it states
the requirements for a valid arbitration agreement. However, one can argue that the
convention only applies to the recognition and enforcement of (foreign arbitral) awards (as
the title states). Nevertheless many tribunals will apply Art 2 (1) NYC because a valid
arbitration agreement is a prerequisite for an award.
The alternative applicable laws are the lex fori, that is the law of the seat of the court where
the claim has been filed, and the lex arbitri, i.e. the law of the seat of arbitration.

At the court of challenge

Recourse against an arbitral award may only be made at the seat of the arbitration and in
accordance with Art 34 UNCITRAL Model Law (ML).
The court of the seat applies its own law; i.e. the lex arbitri.

At the court of enforcement

At the court of enforcement, the NYC is applicable.

2) What are the formal requirements for a valid arbitration agreement?

The NYC in its Art 2 (1) sets out 4 requirements that must be met by the agreement to be
considered a valid arbitration agreement.
1. Agreement in writing
2. Specified disputes
3. Defined legal relationship
4. Arbitrable subject matter
Art 3 NYC also says that states mustn’t impose more onerous conditions. The above-
mentioned requirements are therefore the highest possible standard for signatory states of the
NYC.
States may, however, set lower standards. Whereas the NYC requires a signature for an
agreement to be considered “in writing”, Art 7 (Option 1) ML only requests some written
record of the agreement, which itself may also be concluded orally. Art 7 ML (Option 2)
abstains from the writing requirement altogether.
3) Is this a valid arbitration clause?
Yes, it is.

Arbitration proceedings have already commenced. The first

written statements have already been exchanged. To prove one of
your allegations, you (your party) need a document that is in the
possession of the respondent. What can you do?
The topic at hand is document production. As per usual in arbitration it is up to the parties to
come to terms as to what rules of document production they would like to use in case of a
dispute. If they agree on certain rules, these are binding and the tribunal can ask the parties to
comply with them.