Wednesday, November 20, 2019


THE SCOPE OF AN ARBITRATION AGREEMENT IS A THIRD PARTY BOUND BY IT - Dissertation Example heir businesses are built. Where there are contracts, however, there is must exist a system of enforcement that the parties may rely upon in the event a dispute on the interpretation of contractual obligations arises. The general Model Law on Arbitration enacted under the auspices of UNCITRAL is supposed to provide such a framework, although much is left to the national law for it to be made operative and mandatory upon the parties. There are many issues regarding the implementation of these tenets which, because of the wide scope of international public law and the conflict of laws, provides many sources of controversy. This research study provides a comprehensive scan of the major issues, and a survey of relevant cases from the jurisprudence of the different countries involved mostly in these international commercial disputes sought to be enforced by arbitration. While the study does not promise to be exhaustive from the sheer volume of material on the study, it shall seek to provi de as much background on the salient issues that surround arbitration. The method of research relied upon is qualitative legal research, which shall rely on case law as much as a survey of the relevant codal provisions in multilateral treaties and the UNCITRAL Model Law, as well as the New York Convention governing international arbitration. Chapter two: SCOPE OF ARBITRATION AGREEMENT There are many legal implications in determining the scope of an arbitration agreement. It has the nature of a special type of contract pertaining to a particular purpose, the nature of which springs from a principal contract. By case law definition, however, it is not a auxiliary contract in the sense that its validity may be determined by a separate tribunal and in a separate hearing from that of the principal contract in which the agreement may be contained. A question on the validity of the principal contract does not suspend the effectivity of the arbitration agreement. Furthermore, there are many instances when third parties non-signatories to the original contract may be included in an action based on the arbitration agreement. Arbitration clauses are often drafted in haste, and at times by persons not thoroughly familiar with the technicalities thereof. In the interest of putting into effect as far as possible the will of the parties, observers of ICC arbitration have come to distinguish certain indispensable elements without which the arbitration agreement may not be given effect. There are several essential elements of the arbitration agreement: 1 (1) The arbitration agreement must be concluded between two or more parties who are determined or determinable. In

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