The case of Yemena Gas [2017] NSWSC 765 shows how important it is to clearly formulate the arbitration agreement in order to avoid neglecting the requirements of Article 7 of the Act. An application for an injunction against actions restricting foreign proceedings for alleged breach of an arbitration clause may require the English courts to rule on the validity or nullity of the arbitration clause. Midgulf International Ltd v Group Chimice Tunisien [2009] EWHC 963 (Comm) shows that, in such circumstances, the question of jurisdiction is dealt with by the courts and not by the arbitrators. On the other hand, the intentions of the parties to be bound by the arbitration and to exclude the jurisdiction of the national courts must be clearly inferred from the wording of the clause. The relationship between the elements of section 9 of the Arbitration Act 1996, which requires a court to stay the proceedings if there is a valid and enforceable arbitration clause in respect of the dispute, is a matter of certain difficulties. The lengthy judgment of Aikens LJ, which ruled on behalf of the Court of Appeal in the case of “Aeroflot Russian Airlines” v. Berezovsky [2013] EWCA Civ 784, offers a welcome clarification. With respect to the terms, an arbitration agreement must: Based on the facts, the court was satisfied that there was an apparent case of the existence of the arbitration agreement. The application for a stay of proceedings was therefore dismissed and the question of jurisdiction was left to the General Court. The Court of First Instance held that the arbitration clause was valid. It held that the parties` arbitration agreement should be distinguished from a letter of intent to enter into an arbitration agreement.
It further held that a valid arbitration agreement did not require the parties to enter into a separate/additional agreement agreeing to the rules applicable to the arbitration. B, for example, with regard to the number of arbitrators or the composition of the tribunal. The two materially binding conditions for an arbitration agreement are set out in § 1029 (1) ZPO: (b) The formal validity of an international arbitration agreement is determined by the formal rules of validity of the arbitration law of the country in whose territory the arbitral tribunal has its seat. . . .
