CYIL vol. 12 (2021)

Kateřina zabloudilovÁ CYIL 12 (2021) some commentators have suggested that the Hague Convention could be a threat to the dominance of international arbitration as the preferred option for dispute resolution in cross- border transactions. 11 The article aims to identify the differences in regulation of jurisdiction and arbitration agreements under the NY Convention, Brussels Ibis Regulation, and the Hague Convention. The article demonstrates circumstances under which it is more convenient to conclude an arbitration agreement instead of a jurisdiction agreement, and vice versa. Moreover, the article proves that the Hague Convention does not pose a threat to the dominance of international arbitration. The author firstly focuses on differences in the understanding of jurisdiction and arbitration agreements under these legal instruments. Next, requirements on formal and material validity 12 of jurisdiction and arbitration agreements will be compared. Finally, the effects of jurisdiction and arbitration agreements shall be considered. I. The Concept of Jurisdiction and Arbitration Agreements To begin with, the concept of jurisdiction and arbitration agreements under the NY Convention, Brussels Ibis Regulation, and the Hague Convention will be analysed. The following chapter demonstrates that the concept of arbitration and jurisdiction agreements is rather similar under all three legal instruments. The NY Convention The term “ arbitration agreement ” is defined in the NY Convention as an agreement which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. 13 Arbitration agreements are arrangements whereby contractual parties submit their dispute to a nongovernmental decision- maker, selected by or for the parties, to render a binding decision resolving a dispute. 14 Arbitration agreements come into play if there is a difference between the parties. 15 The term “ difference ” is interpreted widely and applies to all existing and future disputes that are 11 Newing, G. Webster, L. (op. cit. sub 10), pp . 105, 113, 114. 12 As any other contracts both arbitration and jurisdiction agreements are subject to rules of formation and material(substantive) validity. Once it is determined that a formally valid arbitration or jurisdiction agreement exists, it is a different step to establish whether the parties are bound by it, i. e. whether the arbitration or jurisdiction agreement is materially valid. An arbitration or jurisdiction agreements is formally invalid if it does not comply with the requirements on its form. An arbitration or jurisdiction agreements is typically materially invalid as a result of unconscionability, duress, fraud, impossibility/frustration, illegality, termination and repudiation, waiver etc. 13 Art. II(1) of the NY Convention. 14 Bělohláv , J. A. Arbitration: Principles & particularities (op. cit. sub 1), p. 1; see also Born, B. G. (op. cit. sub 1), pp. 239, 241; see also Dobiáš, P., Malacka, M. (op. cit. sub 1), p. 117; see also Růžička, K. K otázce právní povahy rozhodčího řízení [The question of the legal nature of the arbitration.]. Bulletin advokacie . 2003, č. 5, p. 34; see also Růžička, K. (op. cit. sub 1), pp. 14, 24. 15 International Council for Commercial Arbitration. ICCA’s Guide to the Interpretation of the 1958 New York Convention. [online]. arbitration-icca.org . 2011. [cit. 30. 12. 2020], p. 56, available at: https://www.arbitration- icca.org/iccas-guide-interpretation-1958-new-york-convention.

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