Arbitration agreements—content
Arbitration agreements—content

The following Arbitration guidance note provides comprehensive and up to date legal information covering:

  • Arbitration agreements—content
  • Contractual requirements for arbitration agreements
  • Identification of the parties
  • Types of arbitration clauses
  • Institutional or ad hoc arbitration?
  • What else may the arbitration agreement contain?
  • Waiving state (sovereign) immunity

This Practice Note considers the content of the arbitration agreement with particular focus on the position under English and Welsh law (England and English are used as shorthand throughout).

This Practice Note should, in particular, be read in conjunction with Practice Notes: Arbitration agreements—definition, purpose and interpretation and Arbitration agreements—the in writing requirement. Further Practice Notes on arbitration agreements are also available in the ‘Related documents’ pod.

Contractual requirements for arbitration agreements

Under English law, an ‘arbitration agreement’ must be made in accordance with usual contractual principles (Mustill & Boyd, Commercial Arbitration, Second Edition, 2001 Companion, LexisNexis®, page 263). Compliance with such principles will be determined by the law applicable to the arbitration agreement (about which see below).

In summary, English law requires that the following matters relating to contract formation must be complied with to ensure there is a valid arbitration agreement between the parties:

  1. offer and acceptance

  2. capacity of the parties

  3. intention to create legal relations

  4. consideration

  5. certainty

These requirements need to be satisfied at the time when the parties enter into the arbitration agreement.

For general information and guidance on contract formation, see: Forming enforceable contracts—overview.

For guidance on the capacity of parties, see Practice Note: Capacity of parties to enter into arbitration agreements.

Parties should also ensure that any onerous and unusual provisions have been brought to the attention of the other