1. Nature and definition
The arbitration agreement is the fundamental contract by which parties agree to resolve their disputes through a private arbitral tribunal rather than a court. Under section 19 of the Arbitration Ordinance (Cap. 609), which adopts the UNCITRAL Model Law, it is defined as an agreement to submit to arbitration all or certain disputes which have arisen or may arise between parties in respect of a defined legal relationship, whether contractual or not.
These agreements typically manifest in two forms:
(i) Arbitration clauses
These are the most common type, typically included as one or more provisions within a larger commercial contract. They provide for the submission of future disputes that may arise from the defined legal relationship.
(ii) Submission agreements
These are post-dispute agreements entered into after a specific controversy has already arisen. Because it is often difficult for parties to cooperate on procedural matters once they are in active conflict, submission agreements are used much less frequently than pre-dispute clauses. They are often stand-alone documents detailing the specific dispute being referred to the arbitral tribunal.
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