NATURE OF ARBITRATION AGREEMENTS
THE MEANING OF “ARBITRATION AGREEMENT”
Prior to the implementation of the Arbitration Act 1996, there were two definitions of the term “arbitration agreement” to be found in the legislation. The general definition in s 32 of the Arbitration Act 1950—“a written agreement to submit present or future differences to arbitration”—was relevant for the purposes of the domestic regime contained in the Arbitration Acts 1950 and 1979 and the Consumer Arbitration Agreements Act 1988. The second definition—“an agreement in writing (including an agreement contained in an exchange of letters or telegrams) to submit present or future differences capable of settlement by arbitration”—was contained in s 7 of the Arbitration Act 1975, and was relevant only for determining the circumstances in which an English court was obliged to stay judicial proceedings in favour of arbitration where the agreement was non-domestic. The slight difference in wording reflected the terms of art II.1 of the New York Convention 1958, which was implemented by the 1975 Act and which provides that “Each Contracting State shall recognise an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration”. The main differences between the two sections were a brief attempt to explain the term “writing”, in the light of the extended definition of writing in art II.2 of the New York Convention, discussed below, and the statement that only matters capable of settlement by arbitration fell within the scope of the word. Neither of these drafting differences was thought to have any substantive effect, as the concepts of joinder of documents and the non-arbitrability of certain forms of dispute were recognised both long before and under the 1950 Act.
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