The following Arbitration guidance note provides comprehensive and up to date legal information covering:
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.
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:
offer and acceptance
capacity of the parties
intention to create legal relations
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.
Parties should also ensure that any onerous and unusual provisions must have been brought to the attention of the other party, noting that an assessment of whether the terms are onerous or unusual will depend on
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