In a decision of 6 February 2020 (“decision”), the Federal Court of Justice (Bundesgerichtshof – BGH) confirmed that the threshold for a valid arbitration agreement is low (BGH, 6.2.2020, I ZB 44/19). In this case, it was found that the intentions of the parties to mediate could be clearly and clearly inferred from the Forum selection clause and that the non-performance of a separate arbitration agreement, which contained more details of the agreed procedure, did not invalidate the intention of the parties. In order to avoid possible lengthy discussions on the validity of an arbitration agreement, it is important that: the inability of the parties to agree in their arbitration agreement on non-binding issues, such as. B that the rules of arbitration (institutional or ad-hoc), the place of arbitration, the number of arbitrators and/or the formation procedure of the arbitral tribunal, will not in principle invalidate the arbitration agreement. 2 In the absence of a choice of the law of the parties, the right of the seat of arbitration plays a leading role in determining the law applicable to the arbitration agreement. It regulates the following issues, three of which relate to the validity of the arbitration agreement: arbitration is a creature of the contract.1 As with any other type of contract, it must meet a number of conditions to be valid.2 Without a valid arbitration agreement, there can be no arbitration or arbitration award.3 In other words, a valid arbitration agreement is the cornerstone of arbitration proceedings. – The question of whether a party was properly represented at the conclusion of the arbitration agreement, governed by state law in which the agent entered into the arbitration agreement On the facts of the case, the court was satisfied that a prima facie case had been made on the existence of the arbitration agreement. The application for a stay of proceedings was therefore rejected and the question of jurisdiction was left to the Tribunal. In our previous article, we looked at the issue of “fragmentation” and its impact on an application to stay proceedings until arbitration. In this article, we will examine the broader considerations that apply to motions regarding the lack of arbitration proceedings, and we will focus on the requirement of a valid arbitration agreement.
The applicant argued that the court was not required to interpret the arbitration in accordance with Part 6 (2) of the IAA because the defendants did not have an application, since the applicant had never signed the arbitration agreement. This was an issue that could only be decided by the court after a full trial, applying the usual standard of civil proof, as if there were no arbitration agreement between the parties, no court could be formed to rule on the matter.