Speaker 1: An Arbitration Agreement must be in writing. This is as per Section 2b, read with Section 7b of the Arbitration Act. The law states that there must be a written record of the Arbitration Agreement. However, it is not necessary that the Arbitration Agreement be contained all in one single document. An Arbitration Agreement can be found as a separate agreement or part of a larger contract. The written agreement can be contained in a document signed by parties or it can also be contained in an exchange of letters, telex, telegrams or other means of communication. These other means of communication specifically include electronic means of communication as well. An agreement can even exist in the exchange of statements of claim and defence where one party alleges that an Arbitration Agreement exists and the other party does not deny it. The requirement that an Arbitration Agreement must be in writing is therefore liberally interpreted. That is, so long as there is a written record of the agreement. It is important, however, that the parties must signify their acceptance of the Arbitration Agreement in some manner. The definition of an Arbitration Agreement itself does not specifically require the signing of the Arbitration Agreement to signify acceptance. However, the need to sign an agreement arises from Article 2, Sub Clause 2 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards which is also known as the New York Convention. Now let's look at the basic requirements of an Arbitration Agreement. The Arbitration Act itself is silent on any content requirements of an Arbitration Agreement. However, judicial decisions have given us some basic requirements. There is no specific form required for an Arbitration Agreement to be valid. It is only necessary that the parties indicate their intention to refer their disputes to a private tribunal. The decision of such private tribunal will then be binding on the parties. Even if the words Arbitrator or Arbitration are not used in the agreement, this can still be called an Arbitration Agreement. This is possible as long as the agreement is in writing, the parties agree to refer their present or future disputes to a private tribunal for its decision, the parties empower the private tribunal to adjudicate upon the issue and the parties agree that the private tribunal's decision shall be binding on them. This being said, it is obviously better to expressly state in your Arbitration Agreement that the parties intend to refer disputes to an arbitration and that the arbitration will be governed by the Arbitration Act, including any statutory modifications or amendments thereto. Remember, merely using the word Arbitrator or Arbitration in the absence of these basic requirements will not make what is otherwise not an Arbitration Agreement into an Arbitration Agreement. I mentioned this earlier in the video on negotiating your Arbitration Agreement. There are certain things to be kept in mind while drafting your Arbitration Agreement. The agreement can be a short, simple clause referring all disputes to arbitration and making the decision of the arbitral tribunal final and binding or the agreement can also be a detailed agreement. It could set out all the aspects of conducting an arbitration. Both these types of agreements are valid. However, the one thing that you must do in an Arbitration Agreement is clearly indicate your intention to refer any disputes to arbitration. It is not sufficient to say that in the event of a dispute, the parties will consider referring disputes to arbitration. There must be certainty to your Arbitration Agreement. You must say that in the event of a dispute, the party's recourse will be to arbitration. Using the terms, we may consider our disputes to arbitration or we will consider referring our disputes to arbitration is not sufficient. It is advisable to say that in the event of a dispute, the parties shall refer it to arbitration. Anything else is a mere agreement to agree to arbitration at a later date and it will not be impossible as an Arbitration Agreement. You can also include an arbitration clause in a particular contract by referring to another document. This is known as the Doctrine of Incorporation. Say for example, a client wants to adopt an arbitration clause from one document to the other. To do this, you must specifically provide that the first document will be incorporated into the second. You must clearly state your intention to incorporate not only the other document but the arbitration clause contained in it as well. Additionally, the arbitration clause from that document should be capable of fitting into the incorporating contract. It cannot be repugnant to any of the terms of the main agreement. While drafting the agreement, a general reference to the other document will not be sufficient. You must also specifically provide that the arbitration clause is being incorporated from another larger document.