3 Section 63: Secondary evidence means and implies: …. (5) Oral reports on the content of a document given by a person who has seen it himself. As noted above, international jurisprudence to determine the just law applicable to the compromise clause has revealed diametrically opposed views among management arbitrations, which are likely to converge soon at the international level. It is therefore sufficient for the parties to “conclude the agreement in writing” whether or not it is signed by them (see 5 (2)a) Arbitration Act 1996), which probably includes all ordinary written contracts, even if they are not signed by the parties. Therefore, under the CNCI`s second recommendation, the New York Convention would no longer be considered a “minimum form requirement” but would instead be treated in such a way as to allow state legislation to adopt an arbitration right to minimize or remove the written requirement of Article II, paragraph 2, such as the amendments to the 2006 Model Act 1985. In addition, Bombay HC also reviewed the Supreme Court`s decision in M/s. SBP – Co. v.M/s. Patel Engineering Ltd.
and Anr.4 (“Patel Engineering Case”), in order to clarify the issue at issue. The Supreme Court in that case had ruled that if a court is approached under Section 11 of the Act, then the supreme judge must decide whether there is an arbitration agreement within the meaning of the law. In addition, in such a decision, the Supreme Judge “may either act on the basis of sworn assurances and documents presented, or present such evidence, or register such evidence to the extent necessary.” 5 Bombay HC, however, dealt with the Patel Engineering case, where the Supreme Court`s decision determines whether a particular written document would be considered an arbitration agreement and did not apply to a circumstance in which a party wishes to demonstrate the existence of a written agreement that has not been presented to the Court of Justice. Under the provisions of this article, the provisions of Article 2, paragraph 2 of the Convention may apply to state legal provisions that impose less stringent formal criteria for the performance of premiums. Paragraph 4 of Section 7 is comprehensive. It does not consider that an oral presentation of a document signed by the parties is also an arbitration agreement. It is not surprising that other authorities have rightly extended the New York Convention to the adoption of an international trade arbitration agreement, whether or not the seat of arbitration is located in the State party. Therefore, as stipulated in paragraph 1 of Article II of the New York Convention on the Validity of International Arbitration Agreements, the “Convention” applies only to “written agreements.” National courts that determine the validity of international arbitration agreements should ultimately strive to protect the fundamental principle of party approval of arbitration.
At the same time, courts should also recognize that such consent does not always result in an effective signature and is not necessary. To claim otherwise is to risk unintended results. For example, parties who have accepted an arbitration agreement through the agency or conduct, but have not signed it, would be able to circumvent the arbitration. Similarly, a signatory to an arbitration agreement, for example. B an agent, could be bound to it if, in reality, that signatory is not an appropriate part of the agreement. This is clearly not the intention or spirit of the Convention. UNCEDCIR recognizes its important role in seeking consensus among different social, legal and economic systems, both in developed and developing countries, and in promoting progressive harmonization and unification in the area of international trade law, as mentioned in its preamble.