Naslov
The form of the arbitration agreement

Autori
Tepeš, Nina

Vrsta, podvrsta i kategorija rada
Ocjenski radovi, magistarski rad

Fakultet
Central European University, Legal Studies, International Business Law

Mjesto
Budimpešta

Datum
22.06

Godina
2000

Stranica
146

Mentor
Varády, Tibor

Ključne riječi
arbitration; arbitration agreement; formal validity of arbitration agreement; UNCITRAL Model Law; New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Sažetak
Prevailing rule requires that an arbitration agreement has to be concluded in a written form in order to be formally valid. Similar solutions regarding the 'writing requirement' can be observed on both international and national level. Main problem that was recognized in the paper is the proper definition of the 'writing requirement' as it can be observed in various legal solutions. Due to the unprecedented success on the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Article II (2) of the named Convention was used as the role model in the attempt to define the proper meaning of the 'writing requirement'. Consequently, first part of the paper tried to suggest the procedural framework, imposed by the Convention itself, for valid application of Article II (2). Regarding the national law solutions, Article 7 (2) of the UNCITRAL Model Law was taken as an example of unified legal solution. National legal solutions that differ from the solution provided by Article 7 (2) were also taken into account in the course of analysis. Central part of the paper focuses on different modes of formation of the arbitration agreement. Six main ways in which an arbitration agreement can be concluded were analyzed in accordance with different legal settings. Consequently, it was recognized that an arbitration agreement can be concluded if it is contained in the same document and signed by the parties, by virtue of exchange of documents, by virtue of reference, tacitly, orally and by virtue of procedural conduct. Main distinction was made in regard to the applicable law according to which an arbitration agreement can be deemed as formally valid. Thus first three modes were analyzed in accordance with Article II (2) of the New York Convention and corresponding national legal solutions. Last three modes were analyzed according to national legal solutions that provide for formal validity requirements that are more liberal than those contained in Article II (2), as it was recognized that Article II (2) does not provide for formally valid arbitration agreement that was concluded tacitly, orally or by virtue of procedural conduct. On numerous occasions throughout the paper, it was observed that definition of the 'writing requirement', as provided by Article II (2) of the New York Convention, does not meet the contemporary needs of international commercial practice. Consequently, last part of the paper tried to focus on the present status of the Article II (2) of the New York Convention. This part also reflected on various alternative ways in which the New York Convention in general and provision of Article II (2) in particular could be amended as to provide for formally valid arbitration agreement in situations where arbitration agreement was concluded tacitly, orally or by means of procedural conduct.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA