Chapter 3 discusses the importance of drafting a well-crafted arbitration agreement to establish an effective private dispute resolution system outside of national courts. Various defects in arbitration agreements can lead to inefficiencies and disputes in the arbitration process. The chapter also discusses essential requirements for arbitration clauses, highlighting that short and simple clauses are generally sufficient, especially when using model clauses provided by arbitral institutions. The chapter also discusses the choices that parties make such as the number of arbitrators, their qualifications, the governing arbitration law, the language of the arbitration and the seat of arbitration. Additional clauses beyond the basic clause can also be added to provide more control, but its important to align any additions with chosen institutional rules to avoid contradicting mandatory provisions. Finally, the chapter discusses issues such as preliminary relief, technical expertise, multistep dispute resolution clauses, dispositive motions, legal fees and costs, confidentiality, expanded judicial review, and multiparty agreements.

While Chapter 3 sought to situate international commercial arbitration in the broader context of international adjudication, this chapter focuses on a specific context – that of France. It uses a key concept, the arbitration clause, to explore a wider set of attitudes toward international commercial arbitration that prevailed in the nineteenth and early twentieth centuries. The first part of this chapter explores the movement from renewal to anxiety in eighteenth- and nineteenth-century France – the largely pro-arbitration regime of the French Revolution and the current of hostility toward arbitration that emerged during the Consulate and the First Empire. The second part of this chapter explores the pendulum movement from anxiety to renewal in the late nineteenth and early twentieth centuries. This seminal period for arbitration saw French legislators recognize the validity of arbitration clauses in commercial contracts and create a special regime for international commercial arbitration. In short, this chapter is about the “saga” of the arbitration clause, which offers a unique means of exploring the dynamic of renewal and anxiety in the Age of Aspirations.

An arbitration agreement is an agreement between parties to a legal relationship to submit an existing or any future disputes to arbitration. It follows that an agreement of the parties to arbitrate is the cornerstone of arbitration, as it contains the consent of the parties to submit their dispute to arbitration. There are two basic types of arbitration agreements. The first one is a submission agreement, which consists in an agreement to submit an existing dispute to arbitration. The second is an arbitration clause, which consists in an agreement to submit a future dispute to arbitration.1

This book provides a forum for discussion of current issues and debates in international arbitration, covering the independence and impartiality of arbitrators; how conflicting interests may affect the conduct of arbitrators; the enforcement of arbitral awards, principally under grounds of procedural irregularity; how to resolve issues of misconduct by arbitrators during proceedings; and the current judicial interpretation of arbitration clauses. In England, the key legislation which governs these issues is contained in the Arbitration Act 1996 (the Arbitration Act). Also influential in shaping these issues are the procedural rules of specific arbitral institutions, and the guidance published by organisations such as the International Bar Association (the IBA).

Arbitration is routinely said to be based on consent. Indeed, the consensual nature of arbitration is perhaps its most influential feature, operating both to restrict domestic court involvement in arbitral proceedings as well as limit the review of awards by national courts of law. It is also the consensual nature of arbitration, however, that justifies a domestic court’s power to review an arbitral agreement, especially when a party against whom arbitration is brought denies that it agreed to arbitrate a dispute. In essence, the argument has long been that because arbitration is based on consent, parties that have not agreed to arbitrate should not be required to do so. However, as long as only parties who have agreed to arbitrate are required to do so, there are few legitimate reasons for court involvement in the arbitral process or court review of arbitral awards. The parties agreed to arbitrate and thus should live with the consequences of that agreement.