Answer ... An arbitration agreement can take the form of a separate agreement or an arbitration clause in a contract. To be valid, an arbitration agreement must be in writing. The Arbitration Act provides that an arbitration agreement will be deemed to be in written form when the arbitration agreement:
- is contained in an exchange of written communications between the parties; or
- was concluded by electronic means that are capable of recording the substance of such legal act and the identities of the parties thereto.
Furthermore, a reference in a contract or the parties’ written communications to any document containing an arbitration clause (eg, general terms and conditions) constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause, in the intention of the parties, part of that contract.
An arbitration agreement in writing can be substituted by a statement of the parties accepting the jurisdiction of the arbitral tribunal, recorded in minutes drawn up by the arbitrator.
Answer ... Pursuant to the Arbitration Act, if an arbitration clause is part of an otherwise invalid contract, the arbitration clause shall be invalid only if the grounds for invalidity also affect the arbitration clause. Furthermore, if the parties withdraw from an agreement, such withdrawal shall not apply to the arbitration clause included in the agreement, unless otherwise agreed by the parties.
Answer ... The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal, having regard to the circumstances of the case, including the interests of the parties. Any arbitral proceedings conducted at a permanent court of arbitration shall be subject to the provisions of the rules of procedure of that permanent court of arbitration regulating the place of arbitration.
If the parties fail to agree on the language to be used in the arbitral proceedings, this shall be determined by the arbitral tribunal. Its determination shall apply to any written statement by a party, any hearings and any awards, decisions or other communications by the arbitral tribunal, unless this agreement or a decision of the arbitral tribunal states otherwise. Further, the arbitral tribunal may order that any documentary evidence be accompanied by a translation into the language or languages determined by the arbitral tribunal.