International Judicial Practice and the Written Form Requirement for International Arbitration Agreements

The requirement that international commercial arbitration agreements must be made in writing is well accepted in most countries and has become a uniform practice in international commercial arbitration law. This is due in large part to the widespread acceptance of the Convention on Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"). Article II (1) provides that "each Contracting State shall recognize an agreement in writing." The term "agreement in writing" is defined in Article 11 (2) of the Convention as "an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams." Since the New York Convention took effect, the legislatures of most jurisdictions have accepted the written form requirement, thereby excluding the validity of arbitration agreements made tacitly or orally. Generally, the international practitioners have followed suit, however, some reject the necessity of the written form requirement. [This Article was first published in 1999 Supplement to HE BEI FAXUE [HE BEI LAW SCIENCE], one of the most prestigious law journals in China.

See Jing Wang, Ping Guoji Sifa Shijian Dui Guoji Shangshizhongcai Xieyi Xingshi De Wudu [On International Judicial Practice and the Written Form Requirement for International Arbitration Agreements], HE BEI FAXUE [HE BE L. SCIENCE], Supp. 1999, at 206-08. This Article has been translated and reprinted with the permission of HE BEI FAXUE [HE BEI LAW SCIENCE].