I. Introduction
Arbitration is a voluntary method of dispute resolution. Consent has thus rightly been described as the "essential basis" of arbitration,1 and, as the embodiment of that consent, the arbitration agreement is of foundational importance to the arbitral process.2 International conventions and national law universally require the existence of a valid arbitration agreement to found the jurisdiction of an arbitral tribunal and, conversely, to permit awards to be set-aside or refused enforcement in the absence of such an agreement.3 In assessing that requirement, the existence of a written arbitration agreement is often the starting point for a complex jurisdictional analysis into who is bound by that agreement.
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Originally Published by Indian Journal of Arbitration Law on March 8, 2021.
Footnotes
1. REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION ¶ 2.01 (Nigel Blackaby, Constantine Partasides, Alan Redfern & Martin Hunter eds., 6th ed. 2015) [hereinafter "BLACKABY ET AL."]; see also ANDREA M. STEINGRUBER, CONSENT IN INTERNATIONAL ARBITRATION ¶¶ 2.10, 5.07 (2012) ("The principal characteristic of arbitration is that it is chosen by the parties by concluding an agreement to arbitrate. This is considered the foundation stone of international commercial arbitration, as it records the consent of the parties to submit to arbitration – a consent which is indispensable to any process of dispute resolution outside national courts.") ("The consensual nature is one of the fundamental elements of the classical characterization of the concept of arbitration"); FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION ¶ 498 (Emmanuel Gaillard & John Savage eds., 1999) [hereinafter "FOUCHARD GAILLARD GOLDMAN"] ("The arbitration agreement binds only those parties that have entered into it."); JULIAN D. M. LEW, LOUKAS A. MISTELIS & STEFAN M. KRÖLL, COMPARATIVE INTERNATIONAL COMMERCIAL ARBITRATION ¶ 1–11 (2003) ("The principal characteristic of arbitration is that it is chosen by the parties."); GARY BORN, INTERNATIONAL COMMERCIAL ARBITRATION 280–81 (3d ed. 2021) [hereinafter "BORN"] ("It is elementary that arbitration is consensual ... [T]hat is the uniform holding of national courts, commentary and other authorities. Simply put, absent an 'agreement' to arbitrate, there is, by definition, obviously no 'arbitration agreement.'").
2. BLACKABY ET AL., supra note 1, ¶ 2.01 ("The agreement to arbitrate is the foundation stone of international arbitration. It records the consent of the parties to submit to arbitration – a consent that is indispensable to any process of dispute resolution outside national courts. Such processes depend for their very existence upon the agreement of the parties ... [T]he consent of the parties remains the essential basis of a voluntary system of international arbitration.") (emphasis added).
3. See, e.g., Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. V(1)(a), June 6, 1958, 330 U.N.T.S. 3 [hereinafter "New York Convention"]; Arbitration and Conciliation Act, No. 26 of 1996, § 34(2)(a)(ii) (India) [hereinafter "Arbitration Act"]; United Nations Commission on International Trade Law (UNCITRAL), Model Law on International Commercial Arbitration, art. 34(2)(a)(i), G.A. Res. 40/72, U.N. Doc. A/RES/40/72 (Dec. 11, 1985), as amended by G.A Res. 61/33, U.N. Doc. A/RES/61/33 (Dec. 18, 2006).
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