Clause, standalone agreement, or submission
An international arbitration agreement is most often a clause inside a larger contract, but it can also be a separate document, or a submission agreement signed after a dispute has already arisen. Parties sometimes choose a submission agreement when there was no clause, or when they want to replace an unworkable one. The New York Convention and most national laws expect the agreement to be in writing, though in many places that has been read broadly enough to cover exchanges of emails or signed purchase orders. The agreement is generally treated as separable from the main contract, so a claim that the contract itself is invalid does not automatically defeat the duty to arbitrate.
Who is bound, and who decides
Disputes about the agreement itself are common. One side may argue that the signer lacked authority, that the clause was never incorporated from standard terms, or that an affiliate or executive who never signed should be bound or left out. Legal theories for binding non-signatories exist, but they are applied cautiously and differ by country. A further question is who decides these issues first, a court or the arbitrators, which can depend on the rules chosen and the wording of the clause. The answer can determine where you spend the early part of the case.
Reviewing the paper trail
We start by collecting every version of the contract, any general terms referenced in it, and the correspondence around signing, including who sent which draft and when. Related agreements in the same transaction matter too, because conflicting dispute clauses are surprisingly common. If a submission agreement is being considered, its wording deserves the same care as any contract, since it fixes the scope of what the tribunal can decide. In a first consultation we assess whether the agreement is likely to hold, which parties it reaches, and whether a court or a tribunal is the more likely first stop.
