
Contents
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A. Overview A. Overview
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B. Required Content and Validity of the Arbitration Agreement B. Required Content and Validity of the Arbitration Agreement
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I. Law Applicable to the Arbitration Agreement I. Law Applicable to the Arbitration Agreement
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II. Agreement of the Parties II. Agreement of the Parties
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1. Legal Nature of the Arbitration Agreement: Substantive-law Agreement on Procedural-law Relations 1. Legal Nature of the Arbitration Agreement: Substantive-law Agreement on Procedural-law Relations
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2. General Requirements for a Party Agreement 2. General Requirements for a Party Agreement
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3. Arbitration Agreement by Trade Usage 3. Arbitration Agreement by Trade Usage
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4. Amendment of Arbitration Agreements 4. Amendment of Arbitration Agreements
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III. Minimum Content III. Minimum Content
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1. Dispute Related to a Defined Legal Relationship 1. Dispute Related to a Defined Legal Relationship
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2. Dispute Resolution by an Arbitral Tribunal 2. Dispute Resolution by an Arbitral Tribunal
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IV. Validity IV. Validity
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1. The Separability Principle 1. The Separability Principle
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2. Objective Arbitrability 2. Objective Arbitrability
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a) General Principles a) General Principles
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b) Exceptions b) Exceptions
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c) Arbitrability of Antitrust Disputes c) Arbitrability of Antitrust Disputes
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d) Arbitrability of Corporate Law Disputes d) Arbitrability of Corporate Law Disputes
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3. Subjective Arbitrability 3. Subjective Arbitrability
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4. Form 4. Form
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a) General Principles a) General Principles
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b) Arbitration Among Commercial Parties b) Arbitration Among Commercial Parties
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c) Arbitration Involving Consumers c) Arbitration Involving Consumers
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d) The Distinction Between Commercial Parties and Consumers d) The Distinction Between Commercial Parties and Consumers
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e) Cure by Failure to Object e) Cure by Failure to Object
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f) No Notarization Requirement f) No Notarization Requirement
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5. Further General Grounds for Invalidity 5. Further General Grounds for Invalidity
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6. Grounds for Invalidity in Case of General Terms and Conditions (AGB) 6. Grounds for Invalidity in Case of General Terms and Conditions (AGB)
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a) Commercial Arbitration a) Commercial Arbitration
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b) Consumer Arbitration b) Consumer Arbitration
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V. Interpretation of Arbitration Agreements V. Interpretation of Arbitration Agreements
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VI. Drafting Considerations, Pathological Clauses, And “Less is More!” VI. Drafting Considerations, Pathological Clauses, And “Less is More!”
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C. Scope, Effects, and Termination of the Arbitration Agreement C. Scope, Effects, and Termination of the Arbitration Agreement
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I. Personal Scope I. Personal Scope
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1. Successors and Assignees 1. Successors and Assignees
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2. Joint Liability 2. Joint Liability
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3. Agreement for the Benefit of Third Parties 3. Agreement for the Benefit of Third Parties
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4. Corporate Law Matters 4. Corporate Law Matters
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5. Insolvency Matters 5. Insolvency Matters
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II. Subject-matter Scope II. Subject-matter Scope
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1. Pre-contractual Claims 1. Pre-contractual Claims
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2. Enrichment and Tort Claims 2. Enrichment and Tort Claims
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3. Set-off and Counterclaims 3. Set-off and Counterclaims
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III. Effects III. Effects
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1. Jurisdictional Objection in State Court Proceedings 1. Jurisdictional Objection in State Court Proceedings
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a) General Principles a) General Principles
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b) State Court Action on Admissibility of Arbitral Proceedings b) State Court Action on Admissibility of Arbitral Proceedings
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2. Cooperation and Good Faith Obligations of the Parties 2. Cooperation and Good Faith Obligations of the Parties
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3. Confidentiality 3. Confidentiality
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IV. Termination IV. Termination
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1. Termination by Agreement 1. Termination by Agreement
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2. Unilateral Termination 2. Unilateral Termination
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3. Other Grounds for Termination 3. Other Grounds for Termination
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D. Typical Additional Content of the Arbitration Agreement D. Typical Additional Content of the Arbitration Agreement
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I. Place of Arbitration I. Place of Arbitration
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II. Language of the Proceedings II. Language of the Proceedings
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III. Selection of Applicable Substantive Law III. Selection of Applicable Substantive Law
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1. Party Agreement and its Limitations 1. Party Agreement and its Limitations
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2. Determination in the Absence of Party Agreement 2. Determination in the Absence of Party Agreement
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3. Decision Based on Equity and Fairness (ex aequo et bono; amiable compositeur) 3. Decision Based on Equity and Fairness (ex aequo et bono; amiable compositeur)
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4. Ordre public Limitations, Especially Punitive Damages 4. Ordre public Limitations, Especially Punitive Damages
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IV. Institutional and ad hoc Arbitration IV. Institutional and ad hoc Arbitration
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1. General Considerations 1. General Considerations
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2. DIS 2. DIS
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3. ICC 3. ICC
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4. Construction Disputes 4. Construction Disputes
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Cite
Abstract
This chapter explores the arbitration agreement from a variety of perspectives, first looking at the required content and the validity of an arbitration agreement. As an agreement, it is subject to grounds before invalidity and, once found valid, subject to interpretation. In order to qualify as an arbitration agreement, it must relate to a dispute within a defined legal relationship and must provide for arbitration for binding conflict resolution. The chapter then outlines the scope, effects, and issues of the termination of an arbitration agreement. Under German practice, the personal scope of the arbitration agreement extends to its parties, and in certain limited circumstances, it may also extend to third parties. The chapter concludes with typical additional contents of arbitration agreements, in particular with regard to the place of arbitration, the language of the proceedings, the selection of the applicable substantive law, and the selection ad hoc or institutional arbitration.
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