Tag archives: Arbitration agreement

Who decides whether an arbitration agreement is valid – the court or the arbitrator?

By Patrick Bracher (ZA) on December 10, 2021 Posted in General

In a dispute over whether an arbitration could be held to resolve the dispute between the parties, one party alleged that the arbitration agreement itself did not exist for lack of agreement between them. Where there is a challenge to the arbitration agreement itself, so as to put into question the consent of the parties … Continue reading

Enforce your arbitration award right away or the debt may prescribe

By Todd Petersen and Daniel McConnell on May 31, 2018 Posted in General

An arbitration award does not create a new debt for purposes of prescription. Parties who wait more than one year to have an arbitration award made an order of court with a 30 year prescription period may find that, when they attempt to enforce the award, the underlying debt has prescribed. Parties should deal expressly … Continue reading

How to ensure an arbitration clause survives the agreement

By Patrick Bracher (ZA) on November 5, 2014 Posted in Drafting tips

An arbitration clause should include an express provision that the clause survives the agreement. There was an important shift in Cool Ideas 1186 CC v Hubbard. An unregistered homebuilder was trying to recover the costs of building a home even though the Housing Protection Act prohibits payment and makes it a criminal offence to build … Continue reading

Drafting tips: How not to draft an arbitration clause

By Patrick Bracher (ZA) on September 23, 2014 Posted in Drafting tips

In a UK case, the contract included a provision that “the parties will endeavour to first resolve the matter through Swiss arbitration. Should a resolution not be forthcoming the courts of England will have non-exclusive jurisdiction”. It was held that this is not an arbitration agreement. The parties did not specifically agree to refer the … Continue reading

Arbitration: You get what you ask for

By Patrick Bracher (ZA) on February 13, 2014 Posted in Drafting tips

If you choose an informal arbitration you will usually have to accept the outcome whether you like it or not. In Reward Ventures 01 CC v Walker the arbitration agreement provided that the arbitration must be held “in a summary manner … on the basis that it shall not be necessary to observe or carry out … Continue reading

An arbitration clause may die with the contract

By Patrick Bracher (ZA) on January 24, 2014 Posted in Drafting tips

A clause in a contract requiring the parties to refer their disputes to arbitration is not necessarily enforceable if the contract itself is invalid. Every arbitration clause should be coupled with a provision that the validity of the agreement may be determined by arbitration even though the existence of the agreement itself is being questioned. … Continue reading

There are very limited grounds to set aside an arbitration award

By Patrick Bracher (ZA) on January 7, 2014 Posted in Drafting tips

When you agree to an arbitration clause in an agreement bear in mind that the arbitration award, whether you like it or not, is likely to be the final word. The guiding principle of an agreed arbitration is finality – right or wrong. The arbitration agreement must provide for the right of appeal if the … Continue reading