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What are the validity requirements for an arbitration agreement?
An arbitration agreement must be in writing or evidenced in writing to fall within the scope of the Arbitration Act 1996 (Section 5(1)). The writing requirement is broadly defined (Sections 5(2) to (5)). Oral arbitration agreements fall outside the coverage of the Arbitration Act 1996, but are recognised and enforceable under the common law (see Section 81(1)(b)). Oral arbitration agreements also fall outside the scope of the New York Convention.
English courts generally take a broad view as to what constitutes an arbitration agreement under the Arbitration Act 1996. It suffices for the parties to have recorded in writing nothing more than an intention to refer any disputes to arbitration (Section 6(1)).
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
The Arbitration Act 1996 promotes party autonomy and the English courts are expected to adopt a non-interventionist approach where parties have agreed to submit their disputes to arbitration. The English courts have proven to be arbitration friendly and to construe arbitration agreements in a manner that is supportive of arbitration. If timely sought, the courts will stay their proceedings in respect of a matter which under the arbitration agreement is to be referred to arbitration (Section 9), and might also issue an anti-suit injunction against the party acting in breach of the arbitration agreement.
Unless otherwise agreed by the parties, the tribunal has the power to rule on its own substantive jurisdiction - that is, as to whether there is a valid arbitration agreement governing the dispute (Section 30(1)). Where certain conditions are met, however, the court is entitled, on request, to make a preliminary determination of any question as to the substantive jurisdiction of the tribunal (Section 32(1)).
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, the tribunal has no power to consolidate separate arbitration proceedings. However, the parties are free to agree - ex ante, through a compromis or implicitly by virtue of arbitration rules incorporated in an arbitration agreement - that proceedings be consolidated or that concurrent hearings be held on such terms as may be agreed (Section 35).
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 primary rule is that the tribunal will apply the law chosen by the parties as applicable to the substance of the dispute (Section 46(1)(a)). In the absence of agreement between the parties as to the applicable law, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable (Section 46(3)).
Are there any provisions on the separability of arbitration agreements?
Section 7 provides that an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) 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.
Are multiparty agreements recognised?
English courts recognise multi-party agreements. Sections 16(7) and 18(2) expressly acknowledge circumstances where there may be more than two parties to an arbitration agreement.
In drafting a multi-party agreement, attention must be paid to the procedure in respect of the constitution of the tribunal. Where there is no express agreement between the parties in this regard, any party to the arbitration agreement may, upon notice to the other parties, apply to the court to give directions as to the making of any necessary appointments or to make any necessary appointment itself. An appointment made by the court has effect as if made with the agreement of the parties (Section 18(4)). In the absence of agreement between the parties as to the number of arbitrators, and where there is no application to the court by any of the parties, the dispute will be resolved by a sole arbitrator (Section 15(3)).
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