Arbitration 'Agreements in Writing': Notes in the Margin of the Sixth Goff Lecture

Abstract

IN THE Sixth Goff Lecture,1 Neil Kaplan referred to Article II(2) of the New York Convention,2 that an ‘agreement in writing’ for arbitration shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.3 This definition creates difficulties for arbitration clauses in contracts evidenced by bills of lading, sales confirmations, and charterparty recaps, which are binding if signed by only one party, or unsigned and sent by one party to the other who does not reply, or issued by a broker and sent to both parties who do not reply. Similar problems are created for contracts which include standard written terms with an arbitration clause only by reference, especially in salvage cases, where oral contracts are made over the radio telephone between tug and stricken ship, on the basis of a Lloyd's Open Form. He concluded (and I agree with him) that it was an ‘absurd result’ if a contract for the sale of goods or services would generally be enforced, but the clause in it …