The arbitration agreement

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This Overview signposts key resources on the arbitration agreement, connecting practitioners to guidance, precedent clauses and authorities.

The arbitration agreement is the foundation of consensual jurisdiction in arbitration. Its validity, scope and governing law determine whether disputes are referred to arbitration, which court has supervisory powers, and whether foreign courts must stay proceedings under Article II of the New York Convention. Under the Arbitration Act 1996, an arbitration agreement must be in writing (section 5), is defined in section 6, and is separable from the main contract (section 7). Challenges to jurisdiction and stays of court proceedings are governed by sections 9, 30, 32 and 67.

Key issues include formation and incorporation (including via terms or bills of lading), construction (the Fiona Trust approach to scope), and the law governing the arbitration agreement (as clarified by the Supreme Court in Enka v Chubb and Kabab‑Ji). Practitioners should assess multi - tier clauses and conditions precedent, asymmetrical or optional forum provisions, and the enforceability of joinder, consolidation and appointment mechanics under institutional rules. Non - signatory questions arise through assignment, agency, alter ego and estoppel. Consumer contexts engage...

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