Nowadays, the tendency towards laxer formal requirements in the enforcement of an arbitral clause follows two parallel paths: the clause no longer requires a signature, but rather the exchange of documents demonstrating the will of the parties to enter into arbitration; and the formal requirement is no longer a requisite for validity, but rather a means of evidence. If the document requested is nothing but a document of probative value, the only thing that the document can prove is the existence of an arbitration clause. Hence, the personal enforcement framework of an arbitration clause depends on a different factor: the consent. As such, consent must be found in circumstances beyond the actual clause, free from any formalism. There is, therefore, the possibility that one of the parties might be linked by an arbitral clause, though not aware of it. The author focuses on analysing the reality of this issue and its associated risks through the evaluation of three regulations: the Swiss, the UNCITRAL and the Spanish.
Iurgium [previously Spain Arbitration Review]