ICA and the Writing Requirement: Following Modern Trends Towards Liberalization or Are We Stuck in 1958?

Article 7 of the Model Law was revised in 2006 to liberalize any requirements of form, consistent with modern commercial practices and modern legal trends reflected in national laws. To the extent adopted by national legislatures, either of the two available options under this revision will effectively eliminate any requirement of a “record of consent,” thus making arbitration agreements more easily enforceable in the adopting jurisdiction. However, any such revision of national laws on arbitration based on the revisions of Article 7 of the Model Law will not necessarily have any effect on enforcement of awards in other jurisdictions under the New York Convention of 1958. Thus, the revision of the Article 7 of the Model Law presents a very real possibility that an arbitral tribunal seated in a jurisdiction adopting these revisions may accept jurisdiction over a dispute and render an award that might not be enforceable in other jurisdictions because it fails to meet the requirements of Article II of the Convention.This paper addresses issues raised by the revisions of Article 7 in the context of the well-established principles of competence-competence and separability and suggests that, perhaps, the limits of Article II may be quite appropriate as long as arbitration remains a regime based on actual “consent.” However, the paper further suggests that perhaps the normative circumstances most frequently advanced in arguing for liberalization of the writing requirement actually dictate that arbitration should today be treated as the default regime for resolution of international commercial disputes. The paper concludes with a brief discussion of a hypothetical regime in which international commercial arbitration functions as the default, in the absence of any agreement by the parties on dispute resolution