Originally from: UNCITRAL Model Law After Twenty-Five Years: Global Perspectives on International Commercial Arbitration

INTRODUCTION

An arbitration agreement or arbitration clause is the very foundation for the commencement of arbitration. An arbitration agreement confers jurisdiction on an arbitral institution, where there is an institutional reference, to take cognizance of and to docket a case, or on an arbitral tribunal to decide issues submitted to it by the parties in an ad hoc reference. By entering into an arbitration agreement, the parties create both a negative and a positive enforcement effect. The negative enforcement effect relates to the waiver of the parties’ right to have their disputes resolved by a court, and the positive effect involves a grant of jurisdictional powers to the arbitrators. Despite these presumptive effects of an arbitration agreement, disputes often arise as to the validity and enforcement of arbitration agreements. Article 8 of the UNCITRAL Model Law on International Commercial Arbitration (1985) 1 (Model Law) plays an important role when there is a dispute as to the enforcement of an arbitration agreement, as it establishes the court’s role in enforcing arbitration agreements and provides for the stay of any court proceedings once certain conditions are met. This article aims to survey different courts’ approaches to the exercise of their role under article 8 of the Model Law. In doing so, this article will also consider courts’ interpretation of the writing requirement under article 7 of the Model Law, one of the fundamental requirements of a valid arbitration agreement.