What makes an arbitration agreement valid
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Access the Wiki tree. Validity of the Arbitration Agreement I. Concept 1. Cancel Request the original PDF. Log In. Sign in with LinkedIn or. Remember me. Forgot password? No account? Create a Jus Mundi account. This statutory requirement alone has led numerous arbitration agreements to be rendered invalid. In another case where the parties agreed on the application of ICC arbitration rules, the SPC decided that the arbitration agreement was invalid because the parties had failed to designate an arbitration commission.
Hence, the third requirement for the validity of the arbitration agreement remains. It has deleted the other two statutory requirements: the specific matter for arbitration and a designated arbitration commission. Adding to the liberal approach, the Draft Amendment also incorporated a waiver clause similar to Article 7 5 of the Model Law and provides that, if one party in the arbitration asserts that there is an arbitration agreement and the other party does not deny it, then the arbitration agreement shall be regarded as in existence between the parties see Article 21 of the Draft Amendment.
One can reasonably expect that more arbitration agreements will be given effect by the PRC courts applying the new law if the Draft Amendment stands as it is. The reforms undertaken in the Draft Amendment follow the prevailing international practices.
English law goes further. The French Law could perhaps be seen as the ceiling of liberalism. The Draft Amendment appears similar to the requirements for the validity of the arbitration agreement under Singapore and Hong Kong law, i. If the subject matter of the dispute is not arbitrable, the award may be set aside. According to Austrian law, any pecuniary claim that lies within the jurisdiction of the courts can be the subject of an arbitration agreement.
An arbitration agreement concerning non-pecuniary claims shall be legally effective insofar as the parties may conclude a settlement on the issue in dispute. Examples for matters which cannot be referred to arbitration are i family law matters such as divorce, patrimony or adoption, disputes concerning personal or marital status; and ii public law disputes such as criminal cases.
The arbitration agreement must be contained in either a written document signed including every adequate form of electronic signature by the parties or in an exchange of letters, faxes, e-mails , or other forms of communication exchanged between the parties that provides proof of the existence of the agreement. In addition, when a contract which fulfils the form requirements set out above refers to a document which contains an arbitration agreement, it shall also constitute an arbitration agreement, provided that the reference is such that it makes the arbitration agreement part of the contract.
It should be noted that if a party that may seek to object on the grounds of defect addresses the substantive matters in dispute without raising the lack of form, this defect of the arbitration agreement shall be cured or rather, waived in the arbitration proceedings.
This waiver will occur unless an objection is raised, at the latest, when the said party enters into argument on the substance of the dispute. As mentioned above, the arbitration agreement must identify the parties, the existing or future dispute s and the legal relationship contractual or non-contractual out of which the dispute s arose or might arise.
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