Chapter 2 emphasizes the importance of arbitration agreements, their separability from the main contract, and the need for clarity and validity to ensure enforceability of an arbitration award. It also highlights ongoing efforts to modernize and harmonize the interpretation and enforcement of arbitration agreements through international conventions and model laws. First, it discusses the general characteristics of the arbitration clause. Second, it discusses the concept of separability which allows the arbitration clause to remain valid and enforceable even if the main contract is potentially invalid. Third, it discusses the issue of validity of the arbitration agreement and the fact that different courts interpret the requirements for valid arbitration agreement differently, leading to a non-uniform application of the New York Convention. To address this, UNCITRAL has made recommendation for more flexible interpretationd and has revised provisions of the UNCITRAL Model Law on Arbitration to promote harmonization in the interpretation and enforcement of arbitration agreements.

This chapter addresses the parties to international arbitration agreements. It follows the standard distinction between signatories (those persons whose names appear on the arbitration agreement – or the contract that includes an arbitration clause) and nonsignatories (those persons whose names do not appear on the arbitration agreement but are nonetheless bound by or entitled to invoke it). Part I addresses the treatment of ‘parties’ in the New York Convention and national arbitration laws governing international commercial arbitration, and the ICSID Convention governing (many) investor-State arbitrations. Part II examines the theories under which affected others – that is, nonsignatories to an international arbitration agreement – might nonetheless be bound, likewise first in international commercial arbitration and then in investor-State arbitration. Finally, Part III discusses the available empirical evidence on the parties to international commercial arbitration and investor-State arbitration proceedings.

An arbitration agreement is an agreement between parties to a legal relationship to submit an existing or any future disputes to arbitration. It follows that an agreement of the parties to arbitrate is the cornerstone of arbitration, as it contains the consent of the parties to submit their dispute to arbitration. There are two basic types of arbitration agreements. The first one is a submission agreement, which consists in an agreement to submit an existing dispute to arbitration. The second is an arbitration clause, which consists in an agreement to submit a future dispute to arbitration.1