Is It Possible to Joint a Non-Formal Party to the Agreement of Arbitration - Dissertation Example

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 an 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 contractor in which the agreement may be contained. A question on the validity of the principal contract does not suspend the effectiveness 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) The arbitration agreement must be concluded between two or more parties who are determined or determinable. In the case of a multi-party arbitration agreement, or the case where an agreement is held to include non-signatories, then complex problems of determination may arise. (2) The arbitration agreement must clearly express the parties’ intentions to submit their dispute to arbitration, that is, to the binding decision of one or more arbitrators who are likewise designated according to their agreement. (3) The arbitration agreement must specify the object of the dispute which may be submitted for arbitration proceedings.

Where the dispute has already arisen, it should be described with particularity.