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Arbitration agreements

Validity

What are the validity requirements for an arbitration agreement?

To fall within the scope of the Arbitration Act 1996, an arbitration agreement must be made or evidenced in writing (Section 5). Arbitration agreements are typically part of the commercial contract, but can also be set out in separate documents and be incorporated into a contract by reference (Section 6(2)). While oral arbitration agreements therefore fall outside the scope of the act, they may still be recognised and enforced at common law (Section 81(1)(b)).

Enforcement of agreements

How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?

English courts display a pro-arbitration attitude upholding and supporting parties' agreement to arbitrate their disputes. This support could include a stay of English court proceedings where a matter should be referred to arbitration (Section 9) or interim relief in support of arbitration through a freezing or anti-suit injunction (Section 44). 

Consolidation

Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

Unless the parties agree to confer such power on the tribunal, it has no power to order consolidation of proceedings or concurrent hearings (Section 35).

The parties are free to agree the terms on which any consolidation may take place. This agreement may be given expressly through the arbitration agreement itself or by incorporation of a set of arbitral rules which provide for the consolidation of proceedings in certain circumstances.

Choice of law

How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

The tribunal shall decide the dispute either:

  • in accordance with the law chosen by the parties as applicable to the substance of the dispute; or
  • if the parties so agree, in accordance with considerations as agreed by them or determined by the tribunal (Section 46).

Where the parties have not chosen or agreed an applicable law, the tribunal should apply the law determined by the conflict of laws rules which it considers applicable (Section 46(3)).

Separability

Are there any provisions on the separability of arbitration agreements?

Section 7 of the act addresses the separability of arbitration agreements. Under this, unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether in writing or not) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, did not come into existence or has become ineffective, and shall for that purpose be treated as a distinct agreement.

Multiparty agreements

Are multiparty agreements recognised?

Multiparty agreements to arbitrate are recognised by the English courts, while provisions of the act expressly identify situations in which there may be more than two parties to an arbitration agreement (Sections 16(7) and 18(2)).

In the absence of an express procedure for the appointment of the tribunal in a multi-party agreement in the arbitration agreement or any arbitration rules chosen by the parties, the Arbitration Act allows for a party to apply to the court to make the appointments or direct the appointment process (Section 18(2)).

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