Arbitration Agreement Research Articles (Page 1)

Arbitration offers a flexible and expedited mechanism for settling disputes between parties. To initiate arbitration proceedings, a valid arbitration agreement between the parties is required. In some types of contracts, such as financing, parties prefer to enter asymmetrical or hybrid arbitration clauses, allowing one party to choose between arbitration and/or litigation; the other party remains confined to a single option for dispute settlement. This provides one party with a greater advantage in lieu of certain concessions to the other party, leading to unequal treatment. This study concludes that each jurisdiction has treated asymmetric clauses differently, with conflicting decisions. In most jurisdictions, courts have enforced asymmetrical arbitration clauses as valid, considering that they suit parties’ situations and the nature of the contract. For successful enforcement, asymmetric arbitration clauses must be drafted carefully, limiting the jurisdictions under which the party benefiting from the asymmetric arbitration clause may bring claims, rather than granting unlimited jurisdiction.

This article examines the procedures for consolidating proceedings in chosen Polish and international arbitration institutions. As Polish arbitration rules of two major institutions recently changed, with new versions of the Rules of the Lewiatan Court of Arbitration (Lewiatan Rules) and, Arbitration Rules of the Court of Arbitration at the Polish Chamber of Commerce (SAKIG Rules) coming into force on 1 January 2025, this paper analyses their implications on dispute resolution efficiency and consistency. Consolidation is highlighted as a critical mechanism for addressing multiple claims related to the same venture, aiding in the prevention of contradictory rulings and reducing costs. A comparative methodology is employed to explore the consolidation frameworks of the SAKIG and Lewiatan Rules. Polish institutions rules on consolidation will be compared with approaches from the International Chamber of Commerce Arbitration Rules (ICC Rules) and the London Court of International Arbitration Rules (LCIA Rules). Key distinctions arise regarding the authority responsible for consolidation, form of party consent, and the compatibility of arbitration agreements. The article discusses the role of the Arbitral Tribunal and the importance of considering the parties’ interests, legal relationships, and procedural efficiency in consolidation decisions. The study reveals a notable shift in the Lewiatan Rules toward a more consensus-driven approach, while the SAKIG Rules show a more gradual and refined development.

Article 12 of the Anti-Foreign Sanctions Law of the People's Republic of China grants Chinese citizens and organizations the right to seek judicial remedies by initiating legal proceedings in a People's Court when their rights and interests are infringed upon by discriminatory restrictive measures imposed by foreign states. Although the law stipulates that affected parties may bring an action for recovery under anti-sanctions, the provision's general and abstract nature presents certain issues in its practical application that further analysis and discussion are needed. Moreover, such litigation is not the sole means of recourse available to the parties; in practice, they may also agree to submit their disputes to arbitration. However, given that sanction measures often implicate public interest and national sovereignty, uncertainty exists as to whether an arbitral tribunal may, according to an arbitration agreement, adjudicate such disputes. With neither current international law nor domestic legislation offering explicit guidance on this conflict, this paper argues that in instances where a conflict arises between litigation jurisdiction and an arbitration agreement, precedence should be given to litigation jurisdiction. This approach facilitates the convenient resolution of disputes in a manner consistent with the underlying objectives of anti-sanction recovery actions.

As a core component of multi-tiered dispute resolution agreements, the validity of mediation clauses prior to arbitration agreement in China faces dual challenges of legislative ambiguity and judicial inconsistency. Through comparative legal analysis and case studies, this paper reveals that current judicial practices adopt an extreme "all-or-nothing approach" when reviewing such clauses. yet adjudicatory standards remain highly fragmented, undermining judicial credibility and contradicting party autonomy. To address these issues, this study transcends the limitations of traditional jurisdictional theories by introducing the concept of "admissibility" and proposing a three-tiered review framework encompassing separability, enforceability, and practical significance.

This case note examines the French Court of Cassation’s decision of 6 November 2024. The case involved descendants of the Sultan of Sulu disputing Malaysia’s cessation of payments under an 1878 agreement granting territorial rights. The French Court rejected the enforcement of a Spanish arbitral award based on the alleged invalidity of the arbitration agreement. The Court assessed the validity of the arbitration agreement solely through the common intention of the parties, principles of good faith and the doctrine of ‘useful effect’, without analysing the problem under the lex contractus or the lex loci arbitri, which are applicable under Article V of the 1958 New York Convention. This pragmatic approach departs from established international frameworks, raising concerns about legal certainty and consistency. Ironically, however, the theoretical foundation of this approach – the French transnational or delocalized theory of arbitration – was originally developed to support enforceability, not restrict it. By allowing the recognition of awards annulled at the seat (as in Putrabali), French courts once led a movement toward arbitral autonomy. The Sulu decision, by contrast, illustrates how the same theoretical framework can now produce arbitration-hostile outcomes. This note will argue that the Sulu case exposes an internal contradiction in the transnational theory: its open-ended flexibility, once heralded as liberating, now risks being turned inward to justify the denial of enforcement. By prioritizing judicial interpretation of party intent, the Court disregarded the Convention’s mandate to assess validity under applicable national laws. The French approach (a simple analysis of validity under general principles such as the common intention of the parties, good faith, the doctrine of effet utile, without reference to the law of any particular country) is legally defensible only when it facilitates recognition or exequatur, as permitted under Article VII of the New York Convention. However, in this case, where exequatur was denied, the approach of the French Court of Cassation is a clear violation of the New York Convention.

With the widespread application of artificial intelligence technologies such as blockchain and big data technology, the field of international commercial arbitration is experiencing profound revolutions. The utilization of artificial intelligence in this field not only has acted as an important role in completing repetitive and mechanical basic tasks like drafting arbitration agreements and writing hearing transcripts. Instead, it is now playing a significant role in assisting with case adjudication. artificial intelligence offers positive impacts by enhancing arbitration efficiency, improving arbitration transparency, and reducing arbitration costs. However, it also has issues such as ethical risks, potential leakage of parties' personal information, weakening the "subjectivity" of arbitrators, and reducing arbitration accuracy. This paper proposes targeted measures to fully protect the personal information security of arbitration parties through legal regulations and technological measures, while consistently emphasizing the "subjectivity" of arbitrators. It uses artificial intelligence as an auxiliary tool in decision-making, enabling arbitrators to maximize arbitration efficiency while pursuing "substantive justice."

Abstract This article summarises the issues raised by the authors with the Law Commission in the context of its review and consultative process concerning the Arbitration Act 1996 culminating in the Law Commission’s Final Report of 5 September 2023, the Arbitration Bill proposing to amend the 1996 Act on 21 November 2023, and the Arbitration Act 2025 which received Royal Assent on 24 February 2025.

The emergence of the Russia-Ukraine conflict, therefore presents seismic movements in the global politics, leading towards economic sanctions against Russia as a prominent mechanism in the conflict and diplomatic pressure among many. The sanctions would not only restrict economic activities in and out of Russia but also draw attention to the security of international commercial norms and dispute resolution mechanisms. Justifiably, commercial economic sanctions have recently played a growing critical role in transnational trade. The enterprises that come under sanctions face the dilemma of how to fulfill the contracts and agreements while under the sanctions. This paper tries to raise and discuss the issue of the validity of the international commercial arbitration clause and the arbitrability of the disputes in the background of the economic sanction. It will study through a case analysis the disputes related to the validity of the arbitration clause and the arbitrability of disputes under sanctions. A further approach of comparison is used to look into the different stands taken by diverse authorities on these issues. The work finds that though economic sanctions prove some difficulties, the independence of an arbitration clause, as well as the arbitrability principles, still continue to get wide support. In sanction conditions, arbitration is still an effective and proper method of resolving disputes.

Background: A state's offer to resort to arbitration is one of the most significant topics that raises numerous issues, as such an offer serves as the legal basis for the arbitration agreement, which is later completed upon the investor’s acceptance. The state's expression of consent to arbitration is no longer limited to cases where it concludes a contract with the investor containing an arbitration clause. Rather, the state's consent is now inferred through legislative offers and international agreements to which the state is a party. Methods: In some cases, arbitration is based on specific international legal obligations, such as bilateral investment treaties, which may bind states to arbitration in disputes with foreign investors. As a result, states have become parties to arbitration claims initiated by investors with whom they have no contractual relationship. This has led to a fundamental shift in the landscape of international arbitration, as investment disputes have moved from the realm of diplomatic protection to the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSID). ICSID has, in turn, expanded its jurisdiction to encompass investment disputes even in the absence of an agreement between the disputing parties to resort to arbitration. Results and conclusions: The study has demonstrated that a state's consent to ICSID arbitration may, in certain cases, be inferred from domestic legislation or bilateral investment treaties, thereby establishing a valid legal basis for ICSID jurisdiction even where no directly concluded arbitration agreement exists between the state and the investor.

This article examines the introduction of a default choice-of-law rule in the English Arbitration Act 2025, which provides that, absent express agreement between the parties, the law of the seat governs the arbitration agreement. It focuses on the so-called ‘treaty exception’, which excludes arbitration agreements arising from treaties and foreign legislation from this default rule. The rationale for the exception is explored and its merits assessed. The article compares the English approach with those of certain other jurisdictions frequently chosen as seats in investment treaty arbitrations (Sweden, Singapore, France, and Switzerland), and argues that a comparative approach tends to lend support for the exception contained in the Act.

Abstract The following Article deals with the prerequisites required for effective arbitration agreements in Germany, thereby comparing it with US law. It will be shown that the main obstacle for the effectiveness of arbitration agreements in consumer contracts is the requirement of a formally separated, personally signed written document as set out in § 1031 Sec. 5 ZPO. Contrary to consumer contracts, there is no specific form requirement in business contractual. This statutory concept surprises because the effectiveness mainly depends on formal, non-material requirements. Taking this into account, the following Article will highlight the question whether the current legal framework is ensuring an informed consent.

Abstract The enforcement of forum selection and arbitration agreements against consumers and other parties in disadvantaged bargaining positions has significant consequences for access to justice. As a result, some legal systems simply decline to enforce jurisdictional agreements against certain groups. This is not the case in the United States. To the contrary, such agreements enjoy a strong presumption of enforceability across the board. As a result, the ability of individual parties to secure remedies for violations of their legal rights is significantly curtailed. Because private enforcement plays such an important role in state and federal regulatory regimes, impairing the ability of individual litigants to sue also erodes the accountability of corporations for violations of law. This Article begins with the understanding that jurisdictional agreements constitute contractual waivers of rights. This highlights the two primary sources of law that can be used to police them: contract law and “anti-waiver” rules and doctrine. The Article considers each in turn. It concludes that contract law no longer provides a meaningful constraint on the use of adhesive jurisdictional agreements, but that anti-waiver rules at the state level may.

The judicial conflict between the UK and Russia has markedly intensified due to a surge in anti-suit injunctions (ASIs), anti-antisuit injunctions (AASIs), and anti-enforcement injunctions (AEIs). This friction was exacerbated by Russia’s 2020 Federal Law No. 171-FZ, which expanded the jurisdiction of Russian courts over disputes involving sanctioned Russian entities. This article examines the jurisdictional divide created by these legislative changes, the conflicting approaches of English and Russian courts, and the enforcement challenges that have emerged. It also explores Russian courts’ growing tendency to assert exclusive jurisdiction over disputes involving sanctioned parties, even where arbitration clauses exist, and contrasts this with the UK judiciary’s firm stance in upholding arbitration agreements through ASIs, AASIs, and AEIs.

Abstract The United States is peculiar in its widespread enforcement of consumers’ and workers’ adhesive arbitration agreements. Comparative law discussions of arbitration often note this U.S. peculiarity, and this article confirms it by contrasting the law of Germany, the EU generally, the UK, and Japan. However, this article points out, the U.S. is also unusual in the civil litigation to which arbitration is an alternative. Enforcement of adhesive arbitration agreements in the U.S. largely serves to override three other peculiarities of civil litigation in the U.S.: (1) the civil jury, (2) optout class actions, and (3) extensive discovery. Therefore, enforcing the arbitration agreements of U.S. consumers and workers generally moves their claims from the unusual procedure of U.S. courts to procedures closer to the global norm of comparable nations. In addition, this article shows that the Federal Arbitration Act’s enforcement of adhesive arbitration agreements contrasts with federal cases holding that the Seventh Amendment jury right may be traded away in a bench trial (“jury waiver”) clause only by “knowing” consent. However, these “knowing consent” cases are inconsistent not only with the Supreme Court’s FAA cases but also with cases enforcing adhesive forum selection clauses trading away the Seventh Amendment right. And they are also inconsistent with cases enforcing adhesive consent-to-jurisdiction clauses and adhesive security agreements, both of which trade away constitutional Due Process rights. In sum, contract law standards of consent generally govern both Seventh Amendment and Due Process rights, while cases requiring “knowing” consent for bench trial (“jury waiver”) clauses are outliers. Finally, U.S. states are free to require higher standards of consent to trade away jury and Due Process rights except where a preemptive federal statute says otherwise. The FAA is such a federal statute. In contrast, no analogous federal statute governs bench trial clauses, forum selection clauses, consent-to-jurisdiction clauses, or security agreements. This observation largely explains the case law on these five types of contract clauses.

Subsequent to Law Number 30 Year 1999 on Arbitration and Alternative Dispute Resolution (AADR LAW), violations of arbitration agreements and arbitrator appointment agreements still persist in Indonesia. Parties bound by arbitration agreements have initiated court proceedings, while losing parties have sought to nullify arbitral awards on grounds not stipulated in Article 70 of the AADR LAW. Given the apparent ease of such actions without legal repercussions, this article examines the legal consequences of violating these agreements based on obligation law principles. This research uses a normative juridical approach, utilizing secondary data on arbitration, agreement law, and obligation law, including legislation, scholarly literature, and journal articles. This article finds that arbitration agreements and arbitrator appointment agreements constitute obligations from contractual arrangements. Both agreements fulfill the four elements of obligation: legal relationship, property, parties, and performance. Legally, a breach of these agreements constitutes a default, which may result in legal action against the defaulting party. The AADR Law does not comprehensively regulate this matter. Consequently, this article advocates for developing legal frameworks through additional regulations concerning default parameters in both agreements, along with their legal consequences in rights claims. This approach aligns with commutative justice principles, ensures contractual justice, and facilitates parties' adherence to arbitration and arbitrator appointment agreements.

The International North-South Transport Corridor (INSTC) holds the potential to emerge as a significant route for fostering new economic opportunities within the Indo-Pacific region. This extensive transportation network, connecting the northern and southern hemispheres, holds paramount importance in fostering regional integration, economic development, and geopolitical stability. Economically, the corridor acts as a catalyst for increased trade and commerce, facilitating the efficient movement of goods between participating nations where it links diverse economic zones, reducing transportation costs and time, providing a significant boost to regional economies. The corridor's comprehensive infrastructure supports multimodal transportation, seamlessly integrating maritime, rail, and road networks.

The aims of this research are to examine the practice of applying the choice of jurisdiction and choice of law in the settlement of business dispute between PT. Symrise and PT. Mega Suryamas in South Jakarta District Court and to examine the validity of the arbitration agreement contained in the Invoice. In relation to the problem studied is the norm, then in this study, the method used is the method of normative legal research or normative juridical. The legal substance used in this study is the primary legal material which includes the legislation regarding the arbitration, the court decision, the provisions of the international convention on arbitration, the opinions of experts (doctrine) obtained through the literature, as well as non-legal materials in the form of records of interviews with experts and customs applied in legal practice, especially in the settlement of international arbitration disputes. This research is expected to contribute to the development in the field of law, especially in the application of choice of jurisdiction and choice of law in the settlement of international business disputes in Indonesia.

Abstract This article maps the future of commercial arbitration. With its decision in the Pechstein case, the European Court of Human Rights sanctioned the Swiss Federal Supreme Court for its rather generous approach towards the Court of Arbitration for Sport and imposed human rights restrictions on arbitration proceedings. The major upheaval is that Article 6 of the European Convention of Human Rights applies to ‘involuntary’ arbitrations with full force—including the right to a public hearing. Moreover, the concept of an involuntary arbitration agreement has not remained an oxymoron, as the court ruled that the agreements athletes must sign for their participation in sports competitions are to be classified as heteronomous. Building on this jurisprudence, the German Federal Constitutional Court held that even a serious imbalance of bargaining power may render arbitration agreements ‘involuntary’. Where does this case law leave commercial arbitration? One natural object of investigation is arbitration clauses in contracts that one party presents to the other on a take-it-or-leave-it basis; another is clauses included in the terms and conditions of undertakings that dominate the respective market in the sense of competition law. If such clauses were deemed to be heteronomous for the party on which they are imposed, arbitral tribunals would have to hold their oral hearings in public. Arguably, this would mean the end of commercial arbitration ‘as we know it’.

The right of a non-party to seek anti-suit injunction (ASIs) is a vexed question in international arbitration discourse. Recently, this issue arose before the Singapore Court of Appeal (SGCA) with an interesting twist. That is, can an ASIs be extended to a non-party to shield a contracting party from consequential liability of a foreign judicial proceeding brought in breach of an arbitration agreement? In an interesting take that could potentially shape the debate surrounding this topic, the SGCA has crystallized the position with respect to the issuance of ASIs, including its availability for non-parties to an arbitration agreement. This decision builds upon the existing international jurisprudence concerning the basis for the grant of such injunctive relief to both parties and non-parties, and provides clarity with respect to the extent of legitimate judicial intervention.

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