Introduction

An agreement to arbitrate is the fundamental premise for any arbitration and it is no wonder that the early treaties on arbitration, particularly the 1923 Geneva Protocol, focused on ensuring the validity of arbitral clauses worldwide in addition to the enforceability of subsequent awards. In order for a dispute to be validly submitted to arbitration an agreement is required between the disputing parties; not a contract, merely a binding agreement. The concept of agreement is broader than the form or instrument within which it is recorded, which, other than contracts, may (if the pertinent domestic law allows) include trust deeds, corporate articles of agreement, bills of lading and even oral agreements. In the majority of legal systems agreements are usually synonymous with contracts and most of the aforementioned instruments share many of the characteristics of contracts. What is required in every case is clear and unequivocal consent to submit existing or future disputes to arbitration. With the exception perhaps of consumer disputes, the majority of nations now recognise the validity of pre-dispute arbitration clauses in main contracts or other agreements, in addition to post-dispute arbitration agreements.

The chapter will set out the various parameters and peculiarities of arbitration agreements and will then provide an overview of the instruments in which they are contained, including in what manner an agreement to arbitrate may be derived implicitly through contract interpretation or conduct. We shall then examine the scope of arbitration agreements, their validity and their application to third parties. We will round up the discussion with a brief assessment of multi-party arbitrations and the principle of confidentiality.

Pre-dispute and post-dispute agreements

Two types of agreements exist in law and practice by which two or more disputing parties submit their difference to arbitration, namely, pre-dispute arbitration clauses and post-dispute arbitration agreements, otherwise known as compromis or submission agreements. An arbitration clause is simply a clause, among many, in an agreement stipulating that in the event of a future dispute the parties shall have recourse to arbitration.