Usually, many have perception in their mind that Arbitration proceedings are not possible without an arbitration clause.—- But, this is not correct.

International arbitration is the leading form of international dispute resolution between businesses of different nationalities, as well as between foreign investors and States. It is a consensual, neutral, binding, private, and enforceable means of international dispute resolution, which is typically faster and less expensive than domestic court proceedings.

Since this dispute resolution method is purely consensual, the ability to launch Arbitration Proceedings exclusively depends on the parties’ will (consent to arbitration). However, the required will is often, but not always, encompassed in the contract concluded between parties in the form of an arbitration clause.

Despite the many potential advantages of arbitration as compared to litigation, in case of failing to insert such a clause in their contract, parties tend to resolve their disputes by resorting to other fora (State courts). This often occurs due to the parties are unaware that arbitration remains possible in the absence of an arbitration clause.

Arbitration is generally recognized for taking different forms that include:

• Arbitration clause : The arbitration clause is included in the main contract, concluded between parties, which anticipate resolution of all potential disputes through arbitration
• Arbitration agreement: The arbitration agreement, also called “submission agreement” or the compromise, is concluded for the purposes of a specific dispute after such a dispute has already arisen. This submission agreement allows the parties wishing to avoid State litigation to commence arbitration without an arbitration clause.

In the recent times, arbitration clauses are the most common ground to initiate arbitration proceedings, leaving submission agreements in their shadow. However, this cannot be seen as preventing the parties to enter into such agreements after their dispute has arisen; this possibility remains perfectly possible, despite being largely ignored.

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