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Arbitration agreement

This document discusses arbitration agreements. It defines an arbitration agreement as an agreement between parties to submit present or future disputes to arbitration. There are two basic types: clauses in contracts and separate submission agreements for disputes that have already arisen. The document outlines requirements for valid arbitration agreements under the Model Law and New York Convention. It also discusses the law applicable to arbitration agreements, the power of courts to refer parties to arbitration when an agreement exists, interim measures courts can order, and grounds for terminating an arbitration agreement.

Law◦
ARBITRATION AGREEMENT Ritika Kewalramani K.L.E Society’s law college
INTRODUCTION  “It is a good and fair settlement, when neither party likes the outcome, but agree to it”.  There is a trend world over, in particular among companies and corporate not to drag disputes into long drawn courtroom battles. There comes the significance of arbitration, mediation, conciliation and such ADR mechanism. Hence is the added advantages of saving in time as well as the cost of proceedings. Moreover the parties settle the matter in a win-win spirit.
DEFINITION Arbitration agreement is defined as an agreement to submit present or future dispute to arbitration. This generic concept comprises two basic type : a. A clause in a contract, by which the parties to a contract undertake to submit to arbitration the disputes that may arise in relation to that contract (arbitration clause); or b. An agreement by which the parties to a dispute that has already arisen submit the dispute to arbitration (submission agreement).
 The Model Law defines the arbitration agreement as: article 7.1 “An agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not” .  According to the New York Convention: article II.1 “Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractua1 or not, concerning a subject matter capable of settlement by arbitration” .
According to Section 7of Arbitration Conciliation Act, 1996 the features of Arbitration Agreement are : 1. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. 2. An arbitration agreement shall be in writing. 3. An arbitration agreement is in writing if it is contained in: a) A document signed by the parties; b) An exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or c) An exchange of statements of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other. 4. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.
THE LAW APPLICABLE TO ARBITRATION AGREEMENT The law applicable to the arbitration agreement is defined as the law governing the questions relating to the formation, validity, enforcement and termination of the arbitration agreement. There are different criteria for determining the law applicable to the arbitration agreement. We shall focus on the most common ones: • The law chosen by the parties • The law applicable to the contract • The procedural law applicable to the arbitration • The law of the place of the arbitration • The Model law • The New York convention
REQUIREMENTS FOR THE ARBITRATION AGREEMENT 1) It must arise out of mutual consent. 2) The parties must have legal capacity. 3) The agreement must be made in writing. 4) It must arise out of a defined legal relationship. 5) The subject matter must be arbitral.
KINDS OF ARBITRATION AGREEMANT ARBITRATION CLAUSE • Future disputes. • Short and broad. • Provided clause in the main contract. SUBMISSION AGREEMENT • Disputes which have already arisen • Detailed and specific setting out the exact dispute. • After dispute arisen.
Section. 8 of arbitration conciliation act 1996 Power to refer parties to arbitration where there is an arbitration agreement - 1. A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. 2. The application referred to in sub‐section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. 3. Notwithstanding that an application has been made under sub‐section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.
SECTION. 9 OF ARBITRATION CONCILIATION ACT 1996 Interim Measures by Court : A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court – 1. For the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or 2. For an interim measure of protection in respect of any of the following matters, namely : a. the preservation, interim custody or sale of any goods which are subject‐matter of the arbitration agreement; b. securing the amount in dispute in the arbitration;
c. The detention, preservation or inspection of any properly or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorizing for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorizing any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; d. Interim injunction or the appointment of a receiver; e. Such other interim measure of protection as may appear to the Court to be just and convenient and the court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it
TERMINATION OF ARBITRATION AGREEMANT Termination of arbitration agreement by mutual consent other grounds for termination of the arbitration agreement: 1. Although the death of one of the parties is not generally considered a ground for termination of the agreement, it is expressly provided for under some laws. 2. The death of the arbitrators is not normally a ground for terminating the arbitration agreement, either. Some laws set forth otherwise when the parties regard the intervention of a specific arbitrator as a condition for the arbitration.
CONCLUSION  It is said that when two great powers disagree about anything it doesn’t matter what they must find a way to settle it somehow by arbitration or by negotiation, not by war or threat of war.  All the wars follies very expensive and very mischievous ones. In my opinion there never was a good war or a bad peace when will mankind be convinced and agree to settle their difficulties by arbitration ?
THANK YOU