Incorporation of arbitration agreements (England and Wales)
Incorporation of arbitration agreements (England and Wales)

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

  • Incorporation of arbitration agreements (England and Wales)
  • Scenarios involving incorporation of arbitration agreements
  • Two contract situations
  • Single contract situations—contracts between the same parties

This Practice Note considers the incorporation of arbitration agreements into contracts under English and Welsh law (England and English are used as shorthand throughout). Related content on arbitration agreements can be found on the right-hand side of the page, including Practice Note: Arbitration agreements—the in writing requirement.

For an arbitration agreement to be effective, it must be properly incorporated into the contract to which it relates. Section 6(2) of the Arbitration Act 1996 (AA 1996) requires that the 'reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the contract'.

As such, an arbitration agreement must be in written form contained within:

  1. a clause forming part of the contract, or

  2. a document containing an arbitration clause which is properly incorporated into the contract

The most reliable way of avoiding any doubt over whether a clause is incorporated is to incorporate an arbitration agreement expressly where required. There are, however, occasions when express incorporation does not or cannot occur and a question later arises as to whether an arbitration clause was in fact incorporated into the main contract.

In practice, the question of incorporation usually arises in relation to the incorporation of an arbitration agreement from one document into another. If