The arbitration agreement

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The arbitration agreement is considered the ‘foundation stone’ of arbitration, typically setting out where, how and under what circumstances arbitrations between parties are to be conducted.

This subtopic contains practical guidance on the arbitration agreement and related matters. The various Practice Notes consider the nature, content and scope of the arbitration agreement, the doctrine of separability of the arbitration agreement, and the relevance of the New York Convention in this particular context. Guidance on how the law of the arbitration agreement may be determined is also provided, as well as content on how to effectively incorporate an arbitration agreement into a contract, the factors that may prevent an arbitration agreement from being upheld, and what disputes may be arbitrated (ie arbitrability). Guidance on the closely-related concept of the seat of arbitration (or arbitral seat) can also be found in this subtopic, as well as information on multi-party and multi-contract arbitrations, the impact of the Contracts (Rights of Third Parties) Act 1999 on arbitration, and unilateral option clauses.

Generally speaking, this subtopic provides guidance on the arbitration agreement under English and Welsh law and the

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Post-hearing delay and the Public Policy Threshold in Arbitration (Lancor Holdings Ltd v Prem Kumar Menon)

Arbitration analysis: In Lancor Holdings Ltd v Prem Kumar Menon, the Supreme Court of India held that while mere delay in rendering an arbitral award is not an independent ground for setting it aside under Section 34 of the Arbitration and Conciliation Act, 1996, an inordinate and unexplained delay that materially affects the reasoning or renders the award unworkable may vitiate it on grounds of patent illegality or conflict with public policy. The court found that a nearly four-year post-hearing delay, coupled with contradictory reasoning and loss of adjudicatory coherence, defeated the fundamental objectives of arbitration - finality, fairness, and efficiency. Invoking its powers under Article 142 of the Constitution of India to avoid remanding a 16-year-old dispute to fresh arbitration, the court upheld the validity of the sale deeds executed by the developer but directed forfeiture of ₹10 crore in favour of the landowners as a condition for the developer reclaiming its contractual share. The ruling underscores that procedural legitimacy and timeliness are integral to arbitral justice, refining public policy review as limited safeguard against systemic arbitral failure rather than a vehicle for merits reappraisal. Practical implications written by Prasanth Raju of Chambers of Prasanth Raju.

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Switzerland - Revision of an arbitral award influenced by forgeries and fraud (A.________ v B.________, 4A_268/2025)

Arbitration analysis: In a judgment dated 22 October 2025 (4A_268/2025), the Swiss Federal Tribunal granted an application for revision of an international arbitral award rendered by the Court of Arbitration for Sport (CAS 2018/O/5735), holding that the award had been influenced, to the detriment of the player, by criminal offences committed by his former agent. The criminal courts had established that the agent had submitted forged contracts and a fabricated email in order to mislead the sole arbitrator and obtain payment of an undue commission. Relying on Article 190a(1)(b) of the Swiss Private International Law Act (PILA), the Federal Tribunal set aside the award and remitted the case to the CAS. The decision is exceptional in Swiss arbitration practice, where successful revisions of arbitral awards based on criminal conduct remain extremely rare. It underscores the decisive evidentiary role played by criminal proceedings—particularly where criminal authorities, unlike arbitral tribunals, can rely on coercive powers and international mutual legal assistance to uncover fraud. More broadly, the judgment confirms that Swiss law provides an effective mechanism to ensure that arbitration cannot be instrumentalized as a vehicle for criminal misconduct. Written by Pierre Ducret, CMS Switzerland, counsel to the player before the Swiss Federal Tribunal, and in all related proceedings.

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