Where to go: the floating arbitration agreement

Abstract

Abstract The article examines questions concerning interpretation of commercial arbitration agreements, according to which the place of arbitration is ‘floating’ and hence cannot be finally determined at the time of contracting. The question is, primarily, whether this inherent uncertainty about material procedural rules ‘infects’ the jurisdictional allocation to such an extent that the arbitration agreement must be considered unenforceable and secondarily, whether the floating element in itself constitutes a sufficiently specific procedural rule. Against the background of an analysis of case law from USA, England, Singapore, and Hong Kong, and drawing on experiences from unilateral and bilateral option agreements, the article extracts general principles of interpretation as well as provides specific guidance on the drafting of floating arbitration agreements.