In the face of so many decisions, it is important that the compromise clause thus conceived is not vague, confused or somewhat uncertain. It must clearly state the intention of the parties to refer to arbitration any or certain disputes, as may be the case, and how such arbitration should be implemented. Some essential elements of an arbitration agreement may be as if under: Section 10 of the Arbitration Act provides that when an appeal to a state court is submitted to an arbitration tribunal under the agreement of the parties, the court refers it to arbitration if one of the parties does not request it later than filing its first statement on the merits of the case. However, this rule does not apply if the court finds that the arbitration agreement is invalid, invalid or unenforceable. Have you ever been in a situation where it is not clear whether you should bring proceedings before a court or invoke arbitration? Have you ever regretted not taking the time to read the compromise clause allegedly « boiler plate » (which was probably taken up in your last agreement)? You`re not alone! There have been enough cases where parties have argued in lengthy hearings up to the Supreme Court of India (« Supreme Court »), not on the flesh of the dispute between them, but on whether the right remedy is before a court or an arbitral tribunal. This is especially true in India, where legal proceedings can be lengthy. Why is this happening? After agreeing to refer disputes to arbitration, why is the arbitration agreement not « valid and binding » for the parties? Why do political parties have to bear huge expenses and opportunity costs and accept unnecessary litigation? The answer lies in a carefully crafted arbitration agreement. An arbitration agreement, without the usual bells, whistles and accompanying puzzles, refers to an agreement to send disputes to arbitration. Simply put, in the event of a dispute, the parties agree to refer the matter to an arbitration tribunal instead of going to court. The Supreme Court revised the original draft on the basis of several recommendations.
In particular, this document now contains essential rules regarding the regulation of the public order clause, restrictions on ad hoc arbitration and the consequences of violating these restrictions, alternative dispute settlement agreements, etc. In a recent case, the Russian Supreme Court found that the reference in the arbitration agreement for disputes arising from the « arbitration tribunal » contract does not, as such, result in the parties being rejected from the examination of disputes before the State Court and therefore does not constitute a compromise clause. Significantly, while the law requires to be a written arbitration agreement, it offers some relaxation from such a requirement, providing that an arbitration agreement would be considered written if it is included: on 10 December 2019, the plenary of the Supreme Court of Russia adopted the resolution on the performance of the functions of support and control by the Russian courts with regard to internal and commercial arbitrations. However, such an approach is unfounded: since both parties are inhabited by resident parties of the Republic of Kazakhstan under Article IV of the Convention, it is impossible to identify a specific arbitration institution.