Answer ... Section 19 of the Arbitration Ordinance (AO) (adopting Option I of Article 7 of the Model Law) requires that an arbitration agreement be in writing.

The term ‘in writing’ is broadly defined and includes an arbitration agreement whose content is recorded in any form – even if the arbitration agreement itself has been concluded orally, by conduct or by other means.

The definition expressly includes:

• electronic communications;
• an agreement in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other; and
• a reference in a contract to any document containing an arbitration clause, provided that the reference is such as to make that clause part of the contract.

Answer ... Yes. Section 34(1) of the AO (adopting Article 16(1) of the Model Law) provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

Answer ... There is no default seat under the AO. The parties are free to agree on the place of arbitration (Section 48 of the AO, adopting Article 20 of the Model Law). Failing such agreement, the place of arbitration will be determined by the tribunal having regard to the circumstances of the case, including the convenience of the parties.

There is no default language of the arbitration under the AO. The parties are free to agree on the language or languages to be used in the arbitral proceedings (Section 50 of the AO, adopting Article 22 of the Model Law). Failing such agreement, the tribunal will determine the language or languages to be used in the proceedings.