Section 7 of the Arbitration and Conciliation Act 1996 defines an arbitration agreement as an agreement between the parties, all or part of the disputes that have arisen or will subsequently arise between them in respect of a defined legal relationship, contractual or not, to an arbitration proceeding. The relationship of a doctor with his patient or that of a lawyer with his client are all examples of legal, but not necessarily contractual, relations. The amendment to section 7 is gradual and now considers an agreement concluded electronically to be the same as a written agreement. An arbitration agreement must be signed by the parties. The agreement may take the form of a document signed by both parties and containing all the conditions, or it may also be a document signed by one party containing the conditions and an acceptance signed by the other party. It is sufficient for one party to sign the written deposit and the other party to accept it. As has already been said, the agreement to refer to an arbitration procedure, whether it is a deposit agreement or an already existing arbitration clause, has the possibility of referring to the arbitration procedure that has already emerged or may occur. It was rightly pointed out2 that “the parties do not need to use the words `arbitration` or `arbitrator` to establish an arbitration agreement. By this amendment, it has made the conclusion of the contract more convenient and the parties to the agreement are not required to be physically present for the agreement. The intention must be reciprocal and communicated by this electronic means. The existence of a dispute is an essential condition for arbitration. If the parties have effectively settled their disputes, they cannot refute the transaction and cannot invoke an arbitration clause.
An arbitration agreement must be in writing. Pursuant to section 7(4) of the Act, an arbitration agreement is considered to be in writing if it is contained in section 7 of the Arbitration and Conciliation Act, 1996, which lists that an arbitration agreement may take the form of a separate agreement or arbitration clause in the contract. The parties must agree to refer to an arbitration procedure “in writing” to settle disputes. 8. (1) In this Part, “arbitration agreement” means an agreement of the parties to submit to arbitration any or any dispute that has emerged or may arise between them in a defined legal relationship, whether in a contractual or non-contractual relationship. Mauro Rubino-Sammartano is a partner at LawFed-BRSA. Mr Rubino-Sammartano is currently President of the European Court of Arbitration and the Mediation Centre for Europe, the Mediterranean and the Middle East. He is also an associate member, as an Italian lawyer for Littleton Chambers in London….