Form of Arbitration Agreement

Abstract

The subject of this work is the analysis of the written form of the arbitration agreement in contemporary comparative and international law. The justified expectations of business entities in legal transactions, as well as the occurrence of modern means of communication, have led to various initiatives in the field of regulating the form of arbitration agreements, from which, in terms of corrective techniques, the presumption of the fulfilment of the written form can be observed in cases where, according to the traditional definition of the written form, it wouldn't be met. Another way to avoid the rule on the strict written form is the assumption of the existence of an arbitration agreement in case of preclusion of the right to assert the objection of lack of jurisdiction of the arbitral tribunal. Of particular importance is the technique of concluding an arbitration agreement by referring to another legal act or general conditions that contain an arbitration clause, so in theory, the question arose whether the reference should be explicit, or whether it should only be inferred from its content that the purpose of the referral is to conclude an arbitration agreement. The paper deals with the analysis of these issues and the re-examination of the function of the form of the arbitration agreement in comparison with the traditional functions of the form in civil law contracts, taking into account its specificities, whereby the primary function of the form is the function of providing reliable proof of the existence and content of the arbitration agreement.