By maxyale-2 décembre 18, 2020 In

The Arbitration Clause Or Arbitration Agreement

A number of international arbitration bodies offer arbitration clauses for the parties. The examples are: not necessarily. As a general rule, the conciliation agreement is concluded in the form of a clause as part of a broader contract. The arbitration agreement is a stand-alone contract that can be separated from the material contract in which it is located. This reflects the parties` presumed intention to maintain their agreed dispute resolution procedure, even if the material contract is found to be ineffective. The teaching of dissociability means that an arbitration agreement is governed by a right other than that of the existing material contract. To avoid uncertainty, it is best to specify the law of the arbitration agreement. The application of a compromise clause after the termination or expiry of a contract is ultimately an issue that depends on the intent of the parties. In other words, the parties can, at least in theory, agree that, when the underlying contract is terminated, the arbitration agreement: in the ad hoc arbitration BP Exploration Company (Libya) Ltd. v. Libya, the sole arbiter, implicitly referred to the doctrine of separation and found that “[Libyan law] was effective in terminating BP`s concession, except in the sense that the BP concession is the basis of the court`s jurisdiction and the applicant`s right to claim damages from the respondent in court.” [1] The contracting parties should carefully choose appropriate legislation. The current legislation of a contract can be decisive not only for its birth and validity, but also for determining whether disputes arising from or related to the contract can be subject to arbitration and what corrective measures can be granted by arbitrators. It is therefore always advisable to specify the legislation in force when drafting contracts.

If the parties do not choose the applicable law, the arbitrators will make the choice for them. According to the widely accepted principle of “dissociability,” a compromise clause in a contract is deemed separate from the contract in which it is located. This means that the compromise clause survives the termination of the contract and allows all claims arising from that termination to be referred to arbitration. It is generally considered that, if the choice of the compromise clause is not made separately, the applicable law of the contract as a whole is also the applicable law of the compromise clause. Arbitration tribunals generally accept the doctrine of separation without reference to a national law, but rather as a general principle of international arbitration. In CCI arbitration proceedings, the arbitration tribunals have also ruled that issues of validity, illegality or other breaches of the main contract do not necessarily cause the arbitration agreement to be invalid (see z.B. Interim Award ICC Case No. 4145 and Final Award ICC Case No. 10329).

A compromise clause is a clause in a contract that requires the parties to resolve their disputes through arbitration. While such a clause may or may not specify whether arbitration proceedings take place within a particular jurisdiction, it still binds the parties to some kind of solution outside the courts and is therefore considered to be a kind of forum selection clause. He is also known as “Scott v Avery Clause.” The second factor was the impact of Brazil`s choice of law as the law that governs the arbitration agreement; That is, it could not be implemented without the agreement of both parties. If Brazilian law applies to the arbitration agreement, it can only be applied with the agreement of both parties, and the judge stated that there was “at least a serious risk that a Brazilian choice of law would significantly undermine that agreement.” There was no indication that the parties intended to enter into such a unilateral agreement. On this basis, Brazilian law could not be implied, and the question then turned to the law with the “closest and most real connection”.