The short answer is no. Arbitration agreements by themselves are not subject to enforcement since they are not awards. The award, that is, the decision of the arbitral tribunal, is generally enforceable across jurisdictions, thanks to various international conventions and national laws that support the recognition and enforcement of arbitral awards. The most significant is the New York Convention of 1958, which provides a framework for enforcing arbitration agreements and awards in over 170 countries.
However, arbitration agreements are subject to recognition.
Article Article II (1) of the NY Convention establishes that:
“1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.”
Arbitration agreements come in two forms: stand-alone agreements or dispute resolution clauses within contracts. These agreements must include essential elements, with the most crucial being a commitment to resolve current or future disputes through arbitration. You can find some of the key elements of arbitration agreements here.
The validity of an arbitration agreement is a crucial factor affecting the enforceability of the arbitral award. To be valid, the award should comply with the law chosen by the parties. If no law was specified, the agreement’s validity is determined by the law of the place where it was made. A further element involves the capacity of the parties, and also, the agreement should not be against the public policy of the place where the arbitration agreement is sought to be enforced.
What does it mean that the arbitral agreement is not subject to enforcement but for recognition. It means that, under the 1958 New York Convention, each state undertakes the obligation to recognize an arbitration agreement, which means, that the Courts will acknowledge the existence of the agreement and send the parties to solve their given dispute through arbitration.
Therefore, whenever there is an arbitration agreement, Courts must stay proceedings in favor of arbitration. To give the possibility to the arbitral tribunal to assess the validity or not of the arbitration agreement. And to solve any issue pertaining to the validity of the arbitral agreement, that is null, void or inoperative or incapable to be performed.
However, careful drafting and consideration of applicable laws are crucial to ensure maximum enforceability. Parties should consult with legal experts familiar with international arbitration to craft robust agreements that will withstand scrutiny in various legal systems.
