Report No. 76
2.19. Position in other countries according to replies received by the Indian Council of Arbitration.-
The opinions received by the Indian Council of Arbitration in reply to the query mention above,1 from the various countries-UK., U.S.A., France, West Germany, the Netherlands, German Democratic Republic and Poland-were all in substance, to the effect that once such clause exists in the contract, further consent is not necessary at the time of the reference and a unilateral reference is possible.
In other words, an arbitration agreement with a clause of the nature referred to above is sufficient, and the parties can be compelled to submit the dispute to the arbitrators (arbitral institution or ad hoc arbitrator). The existence of a valid arbitration clause in the contract suffices for the plaintiff to institute the arbitration proceedings. The following is a reproduction of the replies received by the Indian Council of Arbitration to its query referred to above.
1. Para. 2.18, Supra.
Reply negative. When in a business contract an arbitration clause has been inserted at the time of the signature, the clause remains in full value as long as the contract develops its effects, regardless of the fact that at the time the dispute has arisen, the parties disagree. They are compelled to submit the dispute to the arbitrators (arbitral institution or ad hoc arbitrators).
(Mr. Jean Robert, Paris)
German Democratic Republic:
The pre-requisite for the competence of the arbitration court or arbitrators is an agreement among the parties, either by way of a separate contract or a clause as part of a contract. There are no rules on the time at which such a contract is to be concluded nor any formal requirements. Consequently an aggrieved Party may make a unilateral reference of the dispute to the arbitrators. This reference must be juridically qualified as an offer to the other party to conclude a contract on the competence of the arbitration court or arbitrators.
The other party is free to accept the offer explicitly or tacitly by implying a certain intention. Such a conduct implying a certain intention is assumed when a meritorious attitude towards the petition (statement of defence) is expressed, but the other party may also decline the offer, so that no contract ensues and consequently no competence for the arbitration court or the arbitrators.
(Professor Strotibach, Berlin).
For the purpose of invoking arbitration procedure, the arbitration agreement (clause compromissoire) is sufficient. There is no need in Japan that submission (compromise) is drawn up, once a dispute has arisen, upon the basis of that arbitration agreement which was incorporated in e.g., the contract of sale, whether the arbitral clause is prescribed within the contract, or in the anticipation of eventual disputes. That is different (in) kind from the French clause compromissoire.
(Professor T. Kitagawa, Japan)
Fortunately, we don't have the system that, when the dispute has arisen, again an 'acte de compromise' would be required and a new consent of the parties would be necessary to submit the dispute to arbitrators. The answer to your question therefore is plainly yes.
(Professor Pieter Sanders, Netherlands)
In the case of an arbitration clause in a contract, a subsequent "acte de mission" of the dispute to arbitration after the dispute has arisen is superfluous. The existence of a valid arbitration clause in a contract is sufficient for the plaintiff to institute the arbitration proceedings.
(Mr. J. Jakubowski, Warszawa)
If there is an arbitration clause providing for settlement of future disputes there is no need for consent of both parties at the time of referring the dispute. A unilateral reference is possible.
(Mr. Niel Pearson, Manchester)
No consent is necessary at all.
(Professor Martin Domke, New York)
I see the problem like Article V of the European Convention of 1961. This disposition corresponds of our municipal legislation and practice.
(Professor A. Bulow, Bonn)