Note also that arbitration clauses are, to a large extent, relatively formal; although designed by different parties, arbitration clauses almost always contain similar provisions and language for different transactions. What are the provisions that will come back in model international arbitration agreements (and others)? Remember the statements of the Federal Court of Justice in its decision of February 27, 1970, supra, p. 194-98, on the formality of arbitration agreements. What conclusions did the Court draw from this finding as to the proper approach to the interpretation of arbitration agreements? Are these conclusions valid? “All disputes arising from this contract, its performance and interpretation are decided by an arbitration tribunal without the state courts. The parties will enter into a separate arbitration agreement in this regard. in an exchange of letters or telegrams. Marine Towing argues that the policy is not in a position to present the agreement in writing because it has not signed the insurance contract. Marine Towing would define a “written agreement” only as 1) a contract signed by the parties or another written agreement or 2) an exchange of letters between the parties expressing their consent to conciliation. We do not agree with this interpretation of the convention. We tear the definition of the “written agreement” to include either a compromise clause in a contract or (2) an arbitration agreement, (a) signed by the parties or (b) contained in an exchange of letters or telegrams. The two essential requirements of an arbitration agreement are set out in Section 1029 (1) of the OPZ: 1. The diversity of arbitration agreements and “pathological” arbitration clauses.
Let us look at the standard arbitration clauses of UNCITRAL, CCI, LCIA and other institutions, in part in documents 297-99. Compare these provisions with arbitration agreements in the cases described above. Arbitration agreements, like other contracts, the proceeds of negotiation and development of the parties are very different depending on the interests, needs, abilities and foresight of the parties. Consider the comments made by the court at the end of the Lucky Goldstar opinion, which expresses concern about the inability of the parties to use the standard institutional rules and the frequency with which potentially “pathological” (i.e. invalid) arbitration provisions are adopted. Why is this happening? In the cases described above, it is noted that non-specialized policyholders often try to create solutions specifically designed for certain transactions.