chapter  2
49 Pages

Prerequisites: contractual requirements

Before a court considers the effectiveness and enforceability of a jurisdiction or arbitration agreement, the first condition that must be satisfied is that there is a valid conflicts clause between the parties. Existence and validity is the preliminary requirement of disputes resolution agreements. The existence and validity of a dispute resolution agreement is closely related to the formation and validity of contracts or contract terms, but they are not the same. On the one hand, a dispute resolution clause is a contract term, the conclusion of which must follow the ordinary contractual concepts and principles, i.e. there must be a meeting of minds. On the other hand, a dispute resolution clause is a special contract term. The principle of severability usually separates them from underlying contracts and ordinary contract terms. The invalidity of the main contract or other contract terms could not automatically mean a conflicts clause in this contract is invalid. Different applicable law might be applied to decide the validity of a conflicts clause from the main contract. Even if the same applicable law applies, besides basic contractual principles, special rules are applied to determine the existence and validity of jurisdiction or arbitration clauses.