Yes, it is possible to agree upon an arbitration clause through electronic communications. Both the UNCITRAL Model Law on International Commercial Arbitration and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards recognize the validity of arbitration agreements made via electronic means.
It is important to note that arbitration is a method of dispute resolution that arises from the parties’ willingness to submit their disputes to an arbitral process. With the advancement of technology, it is crucial for arbitration to adapt to technological changes, as electronic communications have become a common form of negotiation and contracting.
The UNCITRAL Model Law, in Article 7, option I, paragraph 4, states that the requirement for an arbitration agreement to be in writing is fulfilled by electronic communication if the information contained therein is accessible for later reference. “Electronic communication” is defined as any communication made by means of data messages. On the other hand, the New York Convention, in Article II, second paragraph, recognizes that a written agreement may include an arbitration clause in a contract or a submission agreement signed by the parties, or it may be contained in an exchange of letters or telegrams.
While the New York Convention does not explicitly mention electronic communications as a valid means, the recommendations of the Convention acknowledge that the circumstances described in the Convention are not exhaustive, indicating that other means of communication, such as electronic communications, may be considered to establish an arbitration agreement.
It is important to consider that the validity of an arbitration clause through electronic means may depend on the applicable laws and regulations in each jurisdiction, and that legal requirements must be met, as well as ensuring the authenticity, integrity, and availability of the electronic communication for later reference.
In conclusion, it is possible to agree upon an arbitration clause through electronic means. It is important for the parties’ consent to resort to arbitration to be clearly established and supported by evidence. Both the New York Convention and the UNCITRAL Model Law require the arbitration agreement to be in writing, and the Model Law also allows for agreements through electronic means as long as the information is accessible for later reference.
