Checking the Boxes: Formal Validity of an Arbitration Agreement

The formal validity of an arbitration agreement is a foundational issue expressly addressed by Articles II and V of the New York Convention, Article 7 of the UNCITRAL Model Law on International Commercial Arbitration, and most national arbitration laws.

Formal validity during the lifecycle an arbitration

The question of formal validity may arise at various points during the lifecycle an arbitration.

• Before an arbitration: it may arise in an application for stay or dismissal of court proceedings;
• During an arbitration: it may arise in the context of a challenge to the tribunal’s jurisdiction;
• After an arbitration: it may arise in set-aside (annulment) or enforcement proceedings.

A threshold issue is the law that governs validity: where multiple approaches may apply, practitioners may need to engage with conflict of law rules to determine which formal requirements govern in a particular case. These challenges are magnified in an increasingly digital and virtual world where styles of communication, negotiation and contract drafting may run the gambit from a simple thumbs-up emoji to the most extensively drafted agreement signed in writing.

This white paper “Checking the boxes: Formal Validity of an Arbitration Agreement” flags key considerations for practitioners on the minimum requirements for formal validity of an arbitration agreement and highlights the approaches adopted by several key jurisdictions and arbitral institutions. Edited by Kiran Nasir Gore and Joshua Karton, this white paper draws on modules in Kluwer Arbitration’s Practical Insights by Topic tool written by Giuditta Cordero-Moss and Niek Peters. It further features additional views from local experts, including Alexis Foucard, Stefan Kröll, and Robert Price.

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