Arbitration Agreements
The essential aspects of arbitration agreements, including formation, validity requirements, and drafting considerations. Learn about the definition of arbitration agreements, formal and essential validity requirements, as well as the legal effects of a valid arbitration agreement. Gain insights into how these agreements are irrevocable, enforceable, and their significance in resolving disputes effectively.
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Presentation Transcript
ARBITRATION AGREEMENTS
ARBITRATION AGREEMENT FORMATION ,VALIDITY BASIC ISSUES AND PROPER DRAFTING .
DEFINITION An agreement, In writing, Undertaken to submit to Arbitration, All or any differences, Which have arisen or may arise,
DEFINITION Within a defined legal relationship, Whether contractual or not, Concerning a subject matter capable of settlement by Arbitration.
FORMAL VALIDITY REQUIREMENTS Note these are the formal validity requirements of an Arbitration Agreement. Read Dutch African Trading company BV Versus West African Mills Company Ltd Court of Appeal
ESSENTIAL VALIDITY REQUIREMENTS Parties must have capacity; because it is a basic requirement for validity of every contract.
ESSENTIAL VALIDITY REQUIREMENTS It must not be: Null and void. Inoperative. Incapable of being performed.
ESSENTIAL VALIDITY REQUIREMENTS Null and Void. Fraud, mistake, lack of capacity and illegality
ESSENTIAL VALIDITY REQUIREMENTS Inoperative. Termination, waiver, changed circumstances and repudiation.
ESSENTIAL VALIDITY REQUIREMENTS Incapable of being performed. Impossibility, Frustration, Pathological clauses
LEGAL EFFECT OF A VALID ARBITRATION AGREEMENT Irrevocable except by mutual agreement. Not discharged by death of a person or the dissolution of a body corporate. Specifically enforceable upon application by one party. See Section 6 of ADR Act and Article II N.Y.C. 1. 2. 3.
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT Basic elements: Without these provisions, the agreement may be pathological or potentially pathological.
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT Pathological Arbitration Agreement: One that is incapable of being enforced or very difficult to implement; usually after the involving of the Court.
Drafting Arbitration clauses: the seven deadly sins to avoid.
SEVEN DEADLY SINS Equivocation. Failing to state clearly that the parties have agreed to binding arbitration f
SEVEN DEADLY SINS Inattention. Failing to pay sufficient attention to the transaction to which it relates. Example inarbitrable matters, an unsuitable seat,
SEVEN DEADLY SINS Omission. Leaving out any of the basic elements
SEVEN DEADLY SINS Over-specificity. Providing for too much details or onerous requirements.
SEVEN DEADLY SINS Unrealistic expectations. Providing for unrealistic timelines in the agreement.
SEVEN DEADLY SINS Litigation envy. Providing for a procedure that mimics litigation.
SEVEN DEADLY SINS Overreaching. Drafting the agreement to favour one party unduly.
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT 1. Adoption of Arbitration as the method of resolution future or present disputes.
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT 2. An agreement that the award will be final and binding.
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT 3. A clear indication of the scope of the agreement.
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT 4. A choice between Institutional Arbitration and Ad hoc Arbitration. In Ad hoc Arbitration, always provide for an appointing authority.
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT 5. The number of Arbitrators. The method of selection of Arbitrators. The qualification of the Arbitrators.
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT 7. The Seat of Arbitration (Procedural Law Selection, lex arbitri,judicial oversight and setting aside of the award.)
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT 8. Selection of Governing Law (the law applicable to the merits of the dispute).
BASIC ELEMENTS OF THE ARBITRATION AGREEMENT 9. A Notice provision, if there is none in the agreement.
1All disputes, arising out of or in connection with this contract, shall be resolved by arbitration. 2 The Award shall be final and binding. 3The arbitration shall be conducted under the Arbitration Rules of the Ghana Arbitration Centre 4 The arbitral tribunal shall consist of three arbitrators, one selected by each party and the third who shall be the chairperson shall be selected by the two party appointed arbitrators.
5 The arbitral proceedings shall be conducted in the English language. 6 The seat of the arbitration shall be Accra , Ghana. 7 The law applicable to the merits of the dispute shall be the law of England. 8
