3. Written agreement requirement

3. Written agreement requirement

Section 19 of the Arbitration Ordinance (Cap. 609) mandates that all arbitration agreements subject to its provisions must be in writing. Hong Kong has adopted a modern, broad interpretation of “writing” that accounts for technological developments. An arbitration agreement is treated as being in writing if its content is recorded in any form, even if the agreement itself was concluded orally, by conduct or by other means. 

An agreement satisfies this requirement if: 

1. its content is recorded in any form, including electronic communications like emails even if the underlying contract was concluded orally or by conduct; 
2. it is contained in an exchange of statements of claim and defence where one party alleges the existence of the agreement and the other does not deny it; or 
3. it is incorporated by reference, such as when a contract refers to a separate document (like standard industry terms) that contains an arbitration clause. 

Incorporation by reference 

Arbitration clauses do not always have to be written out in full within the primary contract document to be effective. Hong Kong law allows parties to incorporate an arbitration agreement by reference to another document that contains the clause, such as standard industry terms, general conditions of contract, or a separate signed agreement. For this incorporation to be valid, the reference in the main contract must be clear enough to demonstrate an intent to make the arbitration clause part of the contract. This mechanism is widely used in the construction and shipping sectors, where parties frequently adopt standardized forms.