ARBITRATION AGREEMENT

What is an ARBITRATION
AGREEMENT?
An agreement by the parties to submit
to arbitration all or certain disputes which
have arisen or which may arise between
them in respect of a defined legal
relationship, whether contractual or not.
An arbitration agreement may be in
the form of an arbitration clause in a
contract or in the form of a separate
agreement.

FORM

The arbitration agreement shall be

IN WRITING.

This requirement applies regardless

of whether the arbitration agreement
or contract has been conducted
orally, by conduct of the parties, or
by other means.

Schiff Food Products Inc. v. Naber

Seed & Grain Co. Ltd.
FACTS:
The purchaser, Schiff Food Products Inc. ('Schiff'), of New York,
sent a written offer to purchase oregano to Naber Seed and Grain
Co. Ltd. ('Naber'), of Saskatchewan.
While Naber never returned a signed copy of the offer, it
responded to the offer for performance by submitting a sample
and promising delivery.
Eventually it became clear that delivery would not occur and
Schiff sought to arbitrate the alleged breach of contract in New
York before the American Spice Trade Association, in accordance
with the arbitration provision printed on the offer that had been
sent to Naber.
Naber chose not to participate in the arbitration. It objected on
two grounds : that no contract bound the parties and that the
arbitration agreement had not been agreed to in writing.

RULING:
Naber was bound as a result of its conduct:
sending the sample and promising delivery.
Article 7 of the Model Law, as incorporated in
the International Commercial Arbitration Act
the article did not expressly require a signature
and therefore the Court was able to find that
the incorporation of the arbitral agreement in
Schiff's standard form offer met the
requirement of article 7 that the agreement be
in writing.

What about Electronic

communication?
Any communication that the parties
make by means of data messages.
Information generated, sent, received or
stored by electronic, magnetic, optical
or similar means, including but not
limited to, electronic data interchange
(EDI), e-mail, telegram, telex, or
telecopy.


The requirement that an
arbitration agreement be in
writing is met by an electronic
communication
if
the
information contained therein
is accessible so as to be
useable
for
subsequent
reference.

 An arbitration agreement is IN
WRITING if it is contained in an
exchange of statements of claim and
defense in which the existence of an
agreement is alleged by one party
and not denied by the other.

North Asia Ltd. v. Caledonian

Techmore Limited and Hanison
Construction Co. Ltd.
The contract between the plaintiff
and the defendant was in writing.
It contained an arbitration clause
but, while it was signed by Hanison,
it was not signed by Caledonian.

ISSUES:
whether the letters exchanged between
the parties provided a record of the
contract, including the arbitration clause
and
whether there is an exchange of a
statement of claim and defence in which
the existence of the arbitration agreement
is alleged and not denied (article 7(2)
MAL).

 The letters exchanged between the parties provided a record of

their contract, despite the fact that no explicit reference was made
in the letters to the arbitration clause contained in the contract.
In addition, the court found that Caledonian had submitted to
Hanison a claim called "contractual claim for loss and expense" on
the basis of the contract and held that this claim constituted either
a letter or, alternatively, a claim under article 7(2), in which the
existence of the arbitration agreement was alleged by Caledonian
and not denied by Hanison.
The court noted that the phrase "statements of claim and defence"
in article 7(2) MAL was not defined and found no reason why it
should be interpreted as referring "only to pleadings in the formal
sense once an arbitration has commenced". The court stayed the
court proceedings under section 6 of the Hong Kong Arbitration
Ordinance

 The reference in a contract to a

document containing an arbitration
clause constitutes an arbitration
agreement provided that:
the contract is in writing; and
the reference is such as to make that
clause part of the contract.

Astel-Peiniger Joint Venture v.

Argos Engineering & Heavy
Industries Co. Ltd.

The document containing the

arbitration clause did not have to be
between the same parties as the
contract into which the arbitration
clause was incorporated by reference.
It is sufficient that the parties have
demonstrated the intention of the
parties to incorporate the arbitration
clause into the sub-subcontract.

Article 8. Arbitration agreement and

substantive claim before court
A court before which an action is brought
in a matter which is the subject of an
arbitration agreement shall, if a party so
requests not later than when submitting
his first statement on the substance of
the dispute, refer the parties to
arbitration unless it finds that the
agreement is null and void, inoperative
or incapable of being performed.

Article 8. Arbitration agreement and

substantive claim before court
Where an action has been brought,
arbitral
proceedings
may
nevertheless be commenced or
continued, and an award may be
made, while the issue is pending
before the court.

Article 9. Arbitration agreement and

interim measures by court
It is not incompatible with an
arbitration agreement for a party to
request, before or during arbitral
proceedings, from a court an interim
measure of protection and for a court
to grant such measure.