Second, the law applicable to the validity of an arbitration agreement or to the “law applicable to the arbitration agreement,” which deals with the material right that determines the very validity of the arbitration agreement. This concept is not synonymous with arbitration law and is also different from the law applicable to material disputes (such as the law applicable to the underlying contract) because of the independence of the arbitration agreement. If the parties do not expressly agree on the applicable law to determine the validity of the arbitration agreement, courts in most countries and regions may determine the validity of the arbitration agreement in accordance with the law of the seat of arbitration in the arbitration agreement. In principle, in the absence of an explicit agreement, the seat of arbitration is the place where the arbitration institution is located. Therefore, if the arbitration agreement provides an ad hoc arbitration procedure without a specific arbitration institution and does not determine the seat of arbitration nor, the country in which the arbitration will take place, is most likely unknown, leading to uncertainty in subsequent acts. There are several reported court cases that analyze the existence and validity of arbitration agreements. Deficiencies in arbitration agreements are often used as grounds for challenging distinctions in state courts. The most frequently used arguments are: the wrong or incomplete name of an arbitration institution; and the absence of references to an institution`s specific rules of procedure (arbitration or conciliation). It appears that these bases are carefully considered in the development of an arbitration agreement.
Similarly, Article 8, paragraph 1, of unCIT`s model law provides that “a court before which an action is commenced in a case subject to an arbitration agreement, the parties, when they request it, to an arbitration procedure, unless it finds that the agreement is real and null, inoperative or not. This article begins with a general introduction to international arbitration agreements, including the definition and elements of arbitration agreements.