Abstract
The article deals with the writing requirement of the arbitration clause under the New York Convention (the “Convention”). The discussion has been triggered by the recent Czech Supreme Court decision on the formal validity of an arbitration clause contained in an exchange of emails. The author first recalls the drafting history of the Convention and rationale behind the writing requirement. Then he analyses its interpretation in the practice of court before and after the 2006 UNCITRAL Recommendation, which suggested extending the interpretation to modern forms of communication such as email. The main part of the article closely scrutinizes the Czech Supreme Court’s decision on the issue. The Court followed the 2006 Recommendation and the majority of its foreign counterparts. However, it also had to deal with the question of whether an email has to be accompanied by a qualified electronic signature for the written form to be met, as this is (unfortunately) the Court’s requirement when it comes to relations governed by Czech law. Fortunately, the Court has taken an international approach looking both to foreign courts’ practice and to its own case-law under other international conventions such as the CISG or the CMR. Thus it has arrived at the conclusion that the writing requirement under the Convention is met also in the case of an arbitration agreement contained in an exchange of simple emails.
Highlights
The 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards[1] with its more than 160 contracting parties is one of the most successful conventions in the field of private international law and is owed a lot by international commercial arbitration for its success
The discussion has been triggered by the recent Czech Supreme Court decision on the formal validity of an arbitration clause contained in an exchange of emails
It has arrived at the conclusion that the writing requirement under the Convention is met in the case of an arbitration agreement contained in an exchange of simple emails
Summary
The 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (hereinafter the “New York Convention” or the “Convention”)[1] with its more than 160 contracting parties is one of the most successful conventions. The more than 60-year-old text of the Convention faces new challenges, as the world around us is quickly evolving and changing. This is true in the area of communication, where emails, Internet, social media, and other means of electronic communication have entirely revolutionized the speed at – and in particular the forms in – which people communicate, transact, and do business in general. This paper deals with the question of whether and how this problem has been overcome by interpretation and, in particular, how the Czech Supreme Court approached the issue in its recent decision, where the arbitration clause was contained in an exchange of emails without a qualified electronic signature.[2]
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