*tab all bolded points in bundle

I. Formation, Validity and Legality

The efficacy of any international arbitration agreement depends on parties’ ability to enforce that
agreement. Rules in national and international law have moved from not recognising arbitration
agreements toward a pro-arbitration approach (by presumptive validity & enforcement mechanisms).
Enforcement mechanism = states’ obligation to “refer” parties to arbitration = requires courts to order
specific performance.

A. Presumptive validity

Arbitration agreements are presumptively valid and enforceable.

International Conventions National Legislation

 New York Convention’s ancillary purpose is
to ensure arbitration agreements are valid
and enforceable in national courts, pursuant
to uniform international standards.
o Mandatory international obligation
of presumptive validity: from Article
II.1 (shall recognise an agreement in
writing) + II.3 (shall refer the parties
to arbitration), subject to limited
exceptions (null and void,
inoperative or incapable of being
performed)
 European Convention’s purpose is to
remove impediments to international
commercial arbitration between parties of
European countries.
o Implicitly recognises presumptive
validity in Articles I and V by
recognising the right of persons to
conclude arbitration agreements,
and that any plea to the jurisdiction
shall be raised during the arbitration
proceedings
 UNCITRAL Model Law parallels and
implements the New York Convention
o Presumptive validity under Art 8(1)
(a court…shall…refer the parties to
arbitration) subject to same
exceptions as New York Convention
 Switzerland Federal Code
o “Validation” principle under Art
178(2) providing for substantive
validity of agreements specifying
arbitration in Switzerland if either:
the law chosen by the parties, the
law governing the subject matter, or
Swiss law produces this result. Swiss
courts have interpreted exceptions
narrowly
 Turkish International Arbitration Law
o Under Art 5 but note different
wording (If an objection is accepted
the court shall dismiss the action on
procedural grounds)

B. Formal requirement

Main formal requirement is “written form” requirement. Under arbitration conventions it affects if a
legal legislative instrument to apply, and under national legislature it goes to validity directly.

International Conventions National Legislation

 New York Convention only recognises  UNCITRAL Model Law Art 7(2) requires
“agreements in writing” in Art II.1, defined arbitration agreement to be “in writing”, but
in Art II.2 (“an arbitral clause in a contract this includes under 7(3) orally or by conduct,
or an arbitration agreement, signed by the
 parties or contained in an exchange of
letters or telegrams.”)
o Note later Resolution by UNCITRAL:
circumstances are “not exhaustive”
 European Convention only recognises
“either an arbitral clause in a contract or an
arbitration agreement, the contract or
arbitration agreement being signed by the
parties or contained in an exchange of
letters, telegrams, or in a communication
by teleprinter.” under Art I.2
and under 7(4) by electronic
communication.
 Swiss PIL article 178 notes that “As regards
its form, an arbitration agreement is valid if
made in writing, by telegram, telex,
telecopier or any other means of
communication which permits it to be
evidenced by a text.”
Conclusion: a movement towards relaxation of
the formal requirements for the validity of
arbitration agreements. Electronic forms are
also accepted as long as they may be evidenced
by text. UNCITRAL Model Law in Option II even
does away with this requirement altogether.

C. Substantive requirements

Substantive validity of the agreement (e.g., lack of consent, mistake, illegality). Main issue is whether
courts decide this or arbitral tribunal – refer to competence-competence principle.

D. Presumptive separability

It is presumed that the arbitration agreement is separate from the main contract i.e. the law may be
different, and nullity of the main contract may not affect the arbitration agreement.

 NY Both Article II(1) and II(2) rest on the assumption that an “arbitral clause in a contract” is itself
an “agreement,” dealing with the subject of arbitration, similarly European Convention.
 Art. 16(1) of the Model Law provides that: “The arbitral tribunal may rule on its own jurisdiction,
including any objections with respect to the existence or validity of the arbitration agreement. For
that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract. A decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.”
 Case law:
o France: Cass. Civ. 1ere
o Swiss: Nat’l Power Corp. v. Westinghouse
o US: Prima Paint Corp. v. Flood & Conklin Mfg. Co

E. Defective and inoperable clauses

Inconsistent or uncertain: courts tend to look for the intent of parties. E.g. under ICC Art 6(2) only
agreement to arbitration under ICC Rules is necessary. Broad interpretation. E.g. often assumed that
because dispute is international parties intend international institution over domestic one.

Inoperable = sometimes because parties failed to comply with a time limit.

F. Competence-competence doctrine
Presumption that arbitrators have power jurisdiction to rule on their own jurisdiction.

Positive effect: arbitration rules & implicitly in
conventions and national laws
Granting arbitration tribunals jurisdiction.
 Model Law Art 16 expressly grants
arbitrators competence-competence to
consider challenges to their own
jurisdiction, including challenges to the
existence and validity of the arbitration
agreement.
 UNCITRAL Rules Art 23(1)
 ICC Rules, Art. 6(5)
Negative effect: conventions & national laws
Limit of the court’s authority to rule on
jurisdiction of arbitrators (differs between
national laws).
 New York Convention II.1: unless null and
void, inoperative, or incapable of being
performed, all other cases refer to tribunal
 Model Law Art 8(1): refer the parties to
arbitration unless it finds that the
agreement is null and void, inoperative or
incapable of being performed.”
 Swiss Law Art 186: “[t]he arbitral tribunal
shall decide on its own jurisdiction.”

G. Joinder of third-parties

The Swiss rules on international arbitration Art. 4.2:

“Where one or more third persons request to participate in arbitral proceedings already pending
under these Rules or where a party to pending arbitral proceedings under these Rules requests that
one or more third persons participate in the arbitration, the arbitral tribunal shall decide on such
request, after consulting with all of the parties, including the person or persons to be joined, taking
into account all relevant circumstances.”

ICC Arbitration Rules: any such joinder shall be subject to the provisions of Articles 6(3)–6(7) and 9.
Art 7.1: No additional party may be joined after the confirmation or appointment of any arbitrator,
unless all parties, including the additional party, otherwise agree

F. Law applicable to AA

Because of separability presumption, AA can be different from law of contract.

Universally recognised solution is to use the law the parties intended to apply to the AA. However,
difficult in practice. Failing any indication, NY convention: the law of the seat.

As discussed below, French judicial decisions and commentary have held that the substantive validity
of international arbitration agreements is directly governed by pro-arbitration principles of
substantive international law. (8) U.S. courts have taken a similar, but less radical, approach, applying
international minimum standards to the substantive validity of arbitration agreements governed by
the New York Convention. (9)

In a conceptually-related approach, Swiss law has adopted a specialized validation principle that gives
effect to agreements to arbitrate in Switzerland if they satisfy any one of a number of potentially-
applicable national laws; (10) courts and legislatures in other jurisdictions have either explicitly or
implicitly adopted comparable validation principles, applying that national law which will give effect
to the parties’ international arbitration agreement. (11) Moreover, as discussed in greater detail
below, the better view of the New York Convention is that Articles II and V(1)(a) mandate application
of a validation principle to determination of the substantive validity of international arbitration
agreements. (12)

II. Non-arbitrability doctrine

See different national laws:

 Article 2059 of the French Civil Code “all persons may enter into arbitration agreements
relating to the rights that they may freely dispose of”.
 Article 1 MTK: “Bu Kanun, Türkiye’de bulunan taşınmaz mallar üzerindeki aynî haklara ilişkin
uyuşmazlıklar ile iki tarafın iradelerine tâbi olmayan uyuşmazlıklarda uygulanmaz.”
 Art. 177 Swiss PIL: “Any dispute involving an economic interest may be the subject-matter of
an arbitration.”

What law governs the arbitrability?

 By State courts:
o The NY Convention provides the application of the lex fori at the enforcement stage.
o No clear provision regarding applicable law before the award has been made. Most
specialists accept the application of lex fori by analogy.
 By Arbitrators:
o Arbitrators have a certain freedom to choose the applicable law. They may refer to
several national laws or to a general principle of international law.
o The application of lex arbitri: to guarantee the efficiency of the award at the seat of
arbitration.
o The laws of the eventual places of execution: to guarantee a maximum chance of
enforcement for the future award.

Note different approaches for employment, IP law, competition law, consumer disputes (see slides).

III. Arbitral Procedure (law of procedure, appointment of arbitrators, proceedings)

Law governing the arbitral procedure:

it’s the whole seat theory vs delocalisation theory bs see slides

Rules OR assistance of national courts to decide:

To select/determine the seat;

To establish the tribunal;

To choose the arbitrators;

To conduct the proceeding and receive the award.

see slides for relevant rules

Replacement of arbitrator: Article 14 and 15 of the ICC Rules. 30-day time limit to challenge.