INTRODUCTION

It is prudent to draft the arbitration agreement in some detail to avoid the danger of uncertainty and confusion. Russell (2007) supplies a helpful checklist of issues that might be addressed. There are also helpful practical comments on this matter in Finizio and Speller (2010). Lewison (2011) notes various leading propositions established within the case law concerning the interpretation of arbitration agreements. If the parties wish to nominate, for example, the LCIA, its website provides the following standard arbitration clause for future disputes:

(This next note cites LCIA's standard arbitration clause for existing disputes).

The English Arbitration Act 1996 requires the arbitration agreement (including an individual ‘submission agreement’) to be in writing (including procedural amplification of the arbitration agreement during the course of a reference). An unwritten arbitration agreement is not lacking in legal effect; but it will not be governed by the Act.

The Arbitration Act 1996 contains a broad definition of the phrase ‘in writing’ (‘much wider than the Model Law’, Article 7(2); on the ‘oral option’ under the UNCITRAL Model Law, see Redfern and Hunter).

In essence, the following elements apply for the purpose of the Arbitration Act 1996 (England and Wales):

(i) there is no need for the agreement to be signed by the parties, or indeed signed at all;

(ii) writing includes information ‘being recorded by any means’;

(iii) the agreement can be: