Choice of Law in International Commercial Arbitration

By Okezie Chukwumerije | Go to book overview

CHAPTER TWO
The Arbitration Agreement

INTRODUCTION

The arbitration agreement is the cornerstone of arbitration because it embodies the consent of the parties to arbitration. It is in the arbitration agreement that the basis for the jurisdiction and powers of an international commercial arbitrator can be found. The necessity of examining the laws relating to arbitration agreements is therefore self-evident.

The laws relating to the arbitration agreement are those that determine whether or not the parties consented to arbitration and the legal implications of the arbitration agreement. When reference is made to the law relating to arbitration agreements, it should be noted that this does not necessarily refer to one body of law; it is possible for different laws to apply to different areas of the arbitration agreement. For example, the law governing the capacity of the parties to enter into an arbitration agreement may differ from the law governing the arbitrability of the subject matter.

There are two types of arbitration agreements. The first, the submission, is an agreement to refer existing disputes to arbitration. This is known in continental parlance as a compromis. The second, the arbitration clause, is an agreement to refer any future dispute to arbitration. In continental parlance it is known as the clause compromissoire. The arbitration clause, which is usually part of a large commercial agreement, is the more common source of arbitration. 1

The distinction between an arbitration clause and a submission agreement is reflected in some national laws. Article 1442 of the French Code of Civil Procedure, for example, states that an arbitration clause is "an agreement by which the parties to a contract undertake to submit to arbitration a dispute which may arise with respect to the contract." Article 1447 of the same code also defines a submission as "an agreement by which the parties to an existing dispute refer the matter to arbitration by one or more

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Choice of Law in International Commercial Arbitration
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface xi
  • Chapter One - General Introduction 1
  • Introduction 1
  • Notes 19
  • Chapter Two - the Arbitration Agreement 29
  • Introduction 29
  • Conclusion 61
  • Notes 62
  • Chapter Three - Law Governing Arbitration Proceedings 75
  • Introduction 75
  • Conclusion 97
  • Notes 98
  • Chapter Four - Law Governing Substantive Issues 107
  • Introduction 107
  • Conclusion 134
  • Notes 134
  • Chapter Five - Issues in the Law Applicable to State Contracts 143
  • Introduction 143
  • Conclusion 164
  • Notes 168
  • Chapter Six - Mandatory Rules of Law in International Commercial Arbitration 179
  • Introduction 179
  • Conclusion 194
  • Notes 194
  • Chapter Seven - Conclusion 199
  • Introduction 199
  • Selected Bibliography 205
  • Index 215
  • About the Author 219
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