Arbitration agreements—the in writing requirement
Arbitration agreements—the in writing requirement

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

  • Arbitration agreements—the in writing requirement
  • An agreement in writing
  • When is an agreement in writing?
  • The Model Law, Art 7—in writing requirement
  • The New York Convention, Art II—agreements in writing
  • Incorporation by reference

This Practice Note considers the ‘in writing’ requirement for arbitration agreements with a particular focus on arbitration agreements pursuant to the law of England and Wales (England and English are used as shorthand throughout), although this issue is also discussed from an international perspective and includes some comparative examples from other jurisdictions. This Practice Note should be read in conjunction with Practice Note: Arbitration agreements—definition, purpose and interpretation.

An agreement in writing

Under Part I of the Arbitration Act 1996 (AA 1996), as is the case in many jurisdictions internationally, an arbitration agreement must be in writing and any oral arbitration agreement will not be enforced in accordance with the statutory regime (however, see the discussion below regarding the circumstances when an oral agreement can constitute an agreement in writing under the AA 1996). The rationale underpinning this rule of law is that the arbitration agreement provides the foundation for the tribunal’s jurisdiction and the extent of the jurisdiction must be clear to the parties and the tribunal. The ‘in writing’ requirement is also considered to be justified because an agreement having the effect of depriving a party of the basic right of access to court should be in writing, and that the requirement of writing reduces disputes as to whether an arbitration agreement was concluded and as to its