AGREEING TO DISAGREE: CAN WE JUST HAVE WORDS?

CISG
ARTICLE 11 AND THE MODEL LAW WRITING REQUIREMENT

Janet Walker*

I. MAKING INTRODUCTIONS

It may seem unusual in a conference celebrating twenty-five years of

success with the Convention on Contracts for the International Sale of Goods1
and twenty years of success with the UNCITRAL Model Law on International
Commercial Arbitration2 for a proceduralist to speak about the CISG rather
than of the Model Law. However, there is a point that lies at the intersection
between the two, and on which the CISG may make an important contribution
to the further development of the Model Law. This point concerns the formal
requirements for dispute resolution clauses in international business contracts
and, in particular, the writing requirement for arbitration agreements in
international sale of goods contracts. This article argues that the success of
the CISG in defining the terms on which persons contract with one another for
the international sale of goods may come to influence the extent to which we
will be prepared to exempt parties from the formalities that are currently
required for demonstrating their desire to resolve their disputes through
arbitration.

II. OBSERVING THE FORMALITIES : THE CISG AND THE MODEL LAW

Despite the fact that agreements for the international sale of goods and for
the arbitration of disputes often arise in the same transactions, the
requirements for the formal validity of these two kinds of agreements are very
different from one another. The CISG grants parties virtually complete
freedom from formalities. Article 11 of the CISG provides:

* Associate Dean, Osgoode Hall Law School, http://research.osgoode.yorku.ca/walker. Yunfeng

(Rebecca) Huang provided excellent research assistance.
1. United Nations Convention on Contracts for the International Sale of Goods, U.N. Doc.
A/CONF.97/18, Annex 1 (Vienna, 11 Apr. 1980) [hereinafter CISG].
2. UNCITRAL Model Law on International Commercial Arbitration, U.N. Doc. A/40/17, Annex
1 (Vienna, 21 June 1985) [hereinafter Model Law].

153
154 JOURNAL OF LAW AND COMMERCE [Vol. 25:153

A contract need not be concluded or evidenced in writing nor is it subject to any other
requirement as to form. The contract may be proved by any means, including witnesses.

Although Article 11 of the CISG eliminates requirements as to form for

international sale of goods contracts, state parties to the Convention were
given the opportunity in Articles 12 and 96 to make declarations that they
would not forgo these requirements.3 A few of the sixty-five countries that
signed on to the Convention did make such declarations,4 but most did not.
The majority of countries chose to enable parties to international sale of goods
contracts to contract with one another free of the formal requirements that
might otherwise prevent the recognition of the existence of a valid and binding
contract between them. They recognized that frequently the business dealings
in which persons agreed to buy and sell goods in the international market
would not be conducted on the basis of written contracts. Accordingly, the
establishment of a fixed requirement for a written contract would be artificial
and unduly cumbersome.
In contrast, Article 7(2) of the Model Law preserves the formal
requirement of a written contract for valid arbitration agreements. Article 7(2)
provides:

The arbitration agreement shall be in writing. An agreement is in writing if it is

contained in a document signed by the parties or in an exchange of letters, telex,
telegrams or other means of telecommunication which provide a record of the agreement,
or in an exchange of statements of claim and defence in which the existence of an
agreement is alleged by one party and not denied by another. The reference in a contract

3. CISG art. 12 provides:

Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or
its modification or termination by agreement or any offer, acceptance or other indication of
intention to be made in any form other than in writing does not apply where any party has his place
of business in a Contracting State which has made a declaration under article 96 of this Convention.
The parties may not derogate from or vary the effect of this article.
CISG art. 96 provides:
A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by
writing may at any time make a declaration in accordance with article 12 that any provision of
article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification
or termination by agreement or any offer, acceptance, or other indication of intention to be made
in any form other than in writing, does not apply where any party has his place of business in that
State.
4. The following countries made declarations in accordance with Article 12 that preserved formal
requirements for contracts otherwise governed by the CISG: Argentina, Belarus, Chile, Hungary, Latvia,
Lithuania, People’s Republic of China, Russian Federation, and the Ukraine. Estonia withdrew its
reservation concerning Article 11 in 2004. Status, 1980—United Nations Convention on Contracts for the
International Sale of Goods, available at http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/
1980CISG_status.html.
2005-06] THE CISG AND THE WRITING REQUIREMENT IN ARBITRATION 155

to a document containing an arbitration clause constitutes an arbitration agreement

provided that the contract is in writing and the reference is such as to make that clause
part of the contract.

The incongruity between these two approaches must be puzzling to

business people. Arbitration agreements are rarely free-standing contracts.
They are usually provisions within contracts for the sale of goods or for other
commercial dealings. It would probably surprise most people engaged in
international sales transactions to learn that they might be bound by a contract
even before the pen meets the paper, but that they would not be entitled to rely
upon the form of dispute resolution that is frequently preferred in international
commercial dealings unless they had a written agreement to that effect. It
would probably surprise them even more in view of the fact that, as is clear
from the freedom to opt out of the application of the CISG and the Model
Law, these instruments were not intended to impose new standards on parties
to international dealings, but to approximate their reasonable expectations in
the absence of specific agreements to the contrary. How could it be
reasonable to suggest that the parties would reasonably expect to be bound by
the substantive terms of a sales agreement and yet not by the arbitration
agreement that it “contained”? Finally, it might seem almost paradoxical to
them to suggest that although, under the doctrine of separability, 5 the
arbitration agreement in a contract could survive a determination that the other
terms of the contract were invalid, it could fail to come into existence in an
otherwise valid and binding oral contract. In short, most businesspeople
would probably think that, over time, there would be a tendency for the
standards for formal validity in the CISG and those in the Model Law to
converge, at least in respect of contracts for the international sale of goods.

III. CUSTOMS IN THE LARGER COMM UNITY

At some level, requirements as to form are designed primarily to set

evidentiary standards for demonstrating the parties’ intentions. They help
courts decide when parties have reached agreement on some point or another.
It may be wondered, then, what the current standards are in other related
contexts in international business dealings.
Generally, the trend in the law governing most business dealings has been
away from strict requirements for formalities. Strict writing requirements are
seen as likely to frustrate the reasonable expectations of the parties in a

5. Model Law art. 16(1).

156 JOURNAL OF LAW AND COMMERCE [Vol. 25:153

sufficient range of circumstances so as to be unreliable in determining whether

the parties had concluded agreements to which they expected to be bound. In
this way, the relaxation of formal requirements in the CISG echoes a great
many other similar instruments relating to international business agreements.
For example, the new UNIDROIT Principles of International Commercial
Contracts 2004 contains an expansive definition of “writing”: Article 1:11
defines “writing” as “any mode of communication that preserves a record of
the information contained therein and is capable of being reproduced in
tangible form.”6 In another example, Article 2:101(2) of the Principles of
European Contract Law contains a declaration of freedom from formalities
much like that contained in the CISG.7 In related contexts, we see a similar
trend. For example, in the Rome Convention, which establishes the rules for
determining the law governing international contracts, Article 3:1 provides
that a choice of law must either be “expressed or demonstrated with
reasonable certainty.”8
It may be objected, though, that these are situations in which the
requirements as to form serve only to indicate that the parties have entered
into an agreement concerning their substantive rights, or that they have chosen
a governing law for their substantive rights, and not an agreement concerning
the procedure for seeking to enforce those rights. What about the standards
for evidence of the parties’ agreement in respect of the process of dispute
resolution? In the Brussels Regulation,9 which governs the jurisdiction of
European member states’ courts over civil and commercial matters, a
jurisdiction clause need only be in a form which accords with the practices
which the parties have established between themselves or, in international
trade or commerce, in a form which accords with a usage of which the parties
to contracts of the type involved ought to have been aware. In short, in most
international commercial contexts there has been a clear tendency to relax the
requirements as to form. Courts are regarded as capable of determining the

6. The full text of the UNIDROIT Principles of International Commercial Contracts 2004 can be
found at http://www.unidroit.org/english/principles/contracts/principles2004/blackletter2004.pdf.
7. PRINCIPLES OF EUROPEAN CONTRACT LAW : PARTS I AND II art. 2:101(2) (1999) [hereinafter
PECL], available at http://www.cisg.law.pace.edu/cisg/text/textef.html, provides that “[a] contract need
not be concluded or evidenced in writing nor is it subject to any other requirement as to form. The contract
may be proved by any means, including witnesses.” A comparative study of CISG Article 11 and PECL
Article 2:101(2) can be found at http://www.cisg.law.pace.edu/cisg/text/peclcomp11.html.
8. Convention on Law Applicable to Contractual Obligations, 1980 O.J. (L 266) [hereinafter Rome
Convention]. The full text of the Rome Convention can be found at http://www.rome-convention.org/
instruments/i_conv_orig_en.htm.
9. Council Regulation 44/2001, art. 23, 2001 O.J. (L 12) 1 (EC).
2005-06] THE CISG AND THE WRITING REQUIREMENT IN ARBITRATION 157

parties’ agreement both in respect of the applicable law, and in respect of their
choice of court on the basis of compelling evidence not confined to the fixed
requirement of having executed a written contract.

IV. LOVERS OF ARBITRATION

This trend towards freedom from formalities in the formation of contracts

generally, and in applicable law and choice of court agreements in particular,
is in marked contrast with the current state of the law in respect of
international commercial arbitration agreements, despite the fact that for more
than a decade highly respected members of the arbitration community have
called for change. As long ago as 1993, a notable lover of arbitration, Gerold
Herrmann, argued that the writing requirement in the Model law was
“outdated.”10 Two years later, in the Sixth Goff Lecture, Neil Kaplan asked
“Is the Need for Writing as Expressed in the New York Convention and the
Model Law out of Step with Commercial Practice?”11 and in a 2004 article
surveying possible revisions of the UNCITRAL Arbitration Rules, Pieter
Sanders suggested that revisions that were being considered for the Model
Law in this area should also be considered in revising the Arbitration Rules.12
This suggestion echoed the concerns of Professor Sanders with excessive
formalism in the New York Convention decades earlier—concerns that led to
the inclusion of the interpretive guidance in Article II(2) that would serve to
safeguard against an unduly rigid application of the writing requirement.13

V. WITH FRIENDS LIKE THESE . . .

Not withstanding the compelling arguments made by those authoritative

figures, the history of discussions of the writing requirement for arbitration
agreements reveals a greater interest in harmonizing the law than in advancing

10. Gerold Herrmann, The Arbitration Agreement as the Foundation of Arbitration and its
Recognition by the Courts, in CONG RESS SERIES: INTERNATIONAL ARBITRATION IN A CHANGING
WORLD —XITH INTER NATION AL ARBITRATION CONFERENCE, BABR AIN , 1993 at 46 (Albert Jan van den
Berg ed., 1993); see also Gerold Herrmann, Does the World Need Additional Uniform Legislation on
Arbitration?—The 1998 Freshfields Lecture, 15 ARB . INT ’L 211 (1999) (considering features, inter alia,
of the writing requirement that could warrant codification beyond that contained in the Model Law).
11. Neil Kaplan, Is the Need for Writing as Expressed in the New York Convention and the Model
Law Out of Step with Commercial Practice?, 12 ARB . INT ’L 28 (1996).
12. Pieter Sanders, Has the Moment Come to Revise the Arbitration Rules of UNCITRAL?, 20 ARB .
INT ’L 243 (2004).
13. Kaplan, supra note 11, at 37-38.
158 JOURNAL OF LAW AND COMMERCE [Vol. 25:153

it. This would appear to have been the objective of the brief discussions of the
point in the New York Conference;14 and this preoccupation seems to have
carried over to the review in recent years by the UNCITRAL Working Group
on International Commercial Arbitration. In the Report of the Working Group
on Arbitration on the Work of its Thirty-sixth Session,15 the Working Group
outlined the proposal to revise the writing requirement for arbitration clauses
contained in Article 7(2) of the Model Law. However, it is clear from the
Report that the main interest in revising Article 7(2) was not in challenging
the need for a writing requirement—it was merely in clarifying the application
of the writing requirement in certain factual circumstances in which courts or
commentators had developed differing views.16
The factual circumstances that had caused doubt tended to be those, such
as maritime salvage contracts, in which contracts were concluded orally or by
performance, with reference to a pre-existing standard form contract
containing an arbitration clause, and circumstances in which contracts were
concluded orally but subsequently confirmed in writing referring to an
arbitration clause. The Working Group agreed that the arbitration agreements
contained in these kinds of contracts should be regarded as meeting the
writing requirement. However, the Working Group felt that “purely oral
contracts” should not be regarded as meeting the writing requirement.17
The value of the Working Group’s proposals to harmonize the law should
not be dismissed lightly. National laws on arbitration agreements vary from
maintaining a fixed writing requirement for their validity, to requiring them
to be verified by a written record, to permitting oral agreements.18 For
example, arbitration agreements are valid only if in writing in Austria,
Belgium, Brazil, Finland, Hong Kong, India, Japan, Norway, Switzerland,
Taiwan, and the United Kingdom; 19 but they need only be verified by a written

14. Id.
15. U.N. Commission on International Trade Law, New York, 4-8 Mar. 2002, U.N. Doc.
A/CN.9/508.
16. Id. ¶ 27.
17. Id.
18. In 2006, UNCITRAL Working Group II on Arbitration published an extensive review of state
practice in this area. Settlement of commercial disputes, U.N. Doc. A/CN.9/WGII/WP.139, available at
http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html.
19. Austria: Code of Civil Procedure (as modified by Federal Law of February 2, 1983) Fourth
Chapter, Art. 577(3) provides that “[t]he arbitration agreement must be in writing or be contained in
telegrams or telex exchanged by the parties.” Belgium: Belgian Judicial Code, Sixth Part: Arbitration
(Adopted 4 July 1972, amended 27 March 1985 and 19 May 1998), Art. 1677 provides that “[a]n
arbitration agreement shall be constituted by an instrument in writing signed by the parties or by other
documents binding on the parties and showing their intention to have recourse to arbitration.” Brazil: Law
2005-06] THE CISG AND THE WRITING REQUIREMENT IN ARBITRATION 159

record in Spain, Singapore and Netherlands;20 and they may be made orally in
New Zealand and the Canadian provinces of Alberta and Ontario.21 Similarly,
the value of clarifying the standards for a valid agreement in circumstances in
which national courts might reach different results can be very important for
international contracts.
Nevertheless, it is not clear why the desire to harmonize and clarify the
law must necessarily entail a willingness to forgo its advancement. It might
be asked why there would exist among experts in the field of international
commercial arbitration a desire to maintain a presumption against arbitration.
Why would they wish to presume, in the absence of a particular form of
evidence of the parties’ intent—that of a written agreement or reference to a
written agreement—that the parties intended to resolve their disputes through
litigation rather than through arbitration? That is, after all, the practical effect

No. 9.307 of 23 September 1996, Art. 4 provides that “[t]he arbitration clause shall be in writing contained
in the contract itself or in a separate document referring thereto.” Finland: Arbitration Act (23 October
1992/967) (in force 1 December 1992), Art. 3 provides that an arbitration agreement shall be in writing,
and it lists circumstances where the writing condition is met. Hong Kong: Arbitration Ordinance-Chapter
341 (1997), 2AC provides that “[a]n agreement is not an arbitration agreement for the purposes of this
Ordinance unless it is in writing.” It goes on to list the numerous situations where there is an agreement
in writing. India: The Arbitration and Conciliation Act (1996), Art. 7(3) provides that “[a]n arbitration
agreement shall be in writing.” Art. 7(4) provides lists of situations where there is an arbitration agreement
in writing. Japan: Arbitration Law, Art. 13 contains detailed provisions providing that arbitration
agreements must be in written form. Norway: Civil Procedure Code, Art. 452:2 provides that “[t]he
arbitration agreement shall be entered into in writing.” Switzerland: Private International Law Statute Art.
178(1) provides that “an arbitration agreement shall be valid if made in writing, by telegram, telex,
telecopier or any other means of communication which permits it to be evidenced by a text.” Taiwan:
Taiwanese Arbitration Act 1998, Chapter I, Art. 1 provides that “[t]he arbitration agreement shall be in
writing.” The English Arbitration Act, Art. 5(1) provides that “[t]he provisions of this Part apply only
where the arbitration agreement is in writing, and any other agreement between the parties as to any matter
is effective for the purposes of this Part only if in writing.” The full text of these laws may be found at
http://www.kluwerarbitration.com/arbitration/arb/home/.
20. Spain: Law 60/2003 of 23 December on Arbitration (in force 26 March 2004), Art. 9 provides
detailed rules on forms of arbitration agreement, in essence, “[t]he arbitration agreement shall be verifiable
in writing.” Singapore: Arbitration Act 2001: Art. 4 provides that the arbitration agreement shall be in
writing unless there is deemed to be arbitration agreement because there is no objection to the assertion of
the existence of an arbitration agreement. Netherlands: Arbitration Act, Art. 1021 provides that “[t]he
arbitration agreement must be proven by an instrument in writing. For this purpose an instrument in writing
which provides for arbitration or which refers to standard conditions providing for arbitration is sufficient,
provided that this instrument is expressly or impliedly accepted by or on behalf of the other party.” The
full text can be found at http://www.kluwerarbitration.com/arbitration/arb/home/.
21. New Zealand: Arbitration Act 1996, Art. 7 provides that “[a]n arbitration agreement may be
made orally or in writing.” Alberta Arbitration Act provides in Art. 5:1 that “[a]n arbitration agreement
need not be in writing.” The same wording exists in Art. 5(3) of Ontario Arbitration Act. The full text can
be found at http://www.kluwerarbitration.com/arbitration/arb/home/.
160 JOURNAL OF LAW AND COMMERCE [Vol. 25:153

of maintaining a fixed evidentiary standard such as a writing requirement for

arbitration agreements.

VI. CIVILIZED COMM UNITIES

Perhaps one of the clearest statements of the presumption against

arbitration underlying the writing requirement is that of Alan Redfern and
Martin Hunter in the third edition of their text:

By agreeing to arbitrate, parties give up one of the basic rights of the citizens of any
civilised community—that is to say, the right to go to their own courts of law. This is a
serious step, for which written evidence is needed.22

Indeed, the high principle reflected in the statement of these learned authors,
can also be found in basic human rights laws such as Article 6 of the European
Convention on Human Rights.23 Still, in the arbitration of international
commercial disputes, the observation seems to be subject to challenge on at
least two grounds.
First, this statement seems to be out of step with the current evidentiary
standards in related settings—standards that accord greater latitude to courts
to refer to the context of the parties’ dealings as a whole to decide whether, in
fact, they have chosen to arbitrate or to litigate their disputes. Accordingly,
in situations in which the parties have, in fact, reached some agreement, it
does not give enough credit to courts or arbitral tribunals to treat them as
unable to assess the evidence and make a determination of the nature of the
parties’ agreement in the absence of fixed standards. Written contracts may
continue to be the clearest evidence of the parties’ agreements, and may even
tend to override other evidence to the contrary. However, in the absence of
writing, there does not seem to be a compelling reason to preclude the parties
from presenting evidence of an agreement that would not meet the current
standards of the writing requirement. All of this is even more the case in a
world of changing technologies in which the capacity to record the
transmissions of audio, video, typewritten and handwritten communications

22. ALAN REDFERN & MARTIN HUNTER , THE LAW AND PRACTICE OF INTER NATION AL COMMERCIAL
ARBITRATION 5 (3d ed. 1999). The fourth edition, which has since been released, contains a more detailed
and nuanced discussion of this point at 134-37.
23. Article 6.1 provides in part “[i]n the determination of his civil rights and obligations . . .
everyone is entitled to a fair and public hearing within a reasonable time by an independent core impartial
tribunal established by law.” The Convention is available at http:///www.echr.coe.int/echr.
2005-06] THE CISG AND THE WRITING REQUIREMENT IN ARBITRATION 161

increasingly blurs the distinction between the various means of demonstrating

the existence of an agreement.
Second, this statement seems to be out of step with current standards for
doing business in related settings. In situations in which the parties have not,
in fact, turned their minds to the method of dispute resolution for the business
dealings in question, and the writing requirement serves to impute or impose
a choice on the theory that it is the reasonable choice, it does not give enough
credit to persons engaged in international business dealings to presume that
they would prefer to litigate rather than arbitrate their disputes. It is true that
where “their own courts of law” refers to the English Commercial Court or
another highly regarded court that prides itself on the quality of its
adjudication of international commercial disputes, it should not readily be
presumed that the parties intended to forgo access to it. However,
international commercial dealings, by their nature, often involve citizens from
different communities (“civilized” or otherwise), and recourse to local courts
may well raise the specter of hometown justice or simply a lack of expertise
in handling the complexities of international disputes. The increasing use of
arbitration by businesspersons who plan for dispute resolution does not
support the view that recourse to the local courts is a basic right in
international commercial dealings. On the contrary, it suggests that freedom
from the obligation to seek recourse in the local courts or to respond to claims
brought in them might properly be regarded as a basic right of persons
engaged in international commerce. In the “civilized community” in which
the rule of the law merchant prevails, it might reasonably be expected that
situations in which a history of dealings between the parties, the customs of
the trade, or industry usage suggest that arbitration is the norm, then it may be
appropriate to presume it to be the parties’ choice in the absence of evidence
of an agreement to the contrary. As Gerold Herrmann aptly put it, “in an
international setting the thrust of an arbitration agreement is not the negative
idea of excluding court jurisdiction . . .; rather, it is the positive idea of
creating for an individual case something that does not currently exist, namely
an international commercial court.”24 To the extent that parties have come to
rely on it in a particular context in the past, they should not be prevented from
doing so simply because they lack a written agreement to that effect. Indeed,
in some business contexts, attributing to the parties the reasonable expectation
that their disputes will be resolved by an international commercial tribunal
may, in fact, be far less artificial and surprising to them than the practice

24. Herrmann, supra note 10.

162 JOURNAL OF LAW AND COMMERCE [Vol. 25:153

currently permitted under the Model Law of attributing to them the

arrangements contemplated by a standard form contract to which scant
reference may have been made in reaching oral agreement on the substantive
terms of their contract.25

VII. CAN WE JUST HAVE WORDS ?

The efforts to maintain the writing requirement in the face of the need to
accommodate new technologies and the range of commercial contexts in
which international arbitration agreements are entered into has led to an
incremental triumph of form over substance. Toby Landau described the
outcome in respect of the English Arbitration Act, which requires only that
arbitration agreements be made “by reference to terms which are in writing,”
as one in which “written” has now been defined to include “oral.”26 To this
paradoxical observation, Alan Uzelac has added that the current work on the
revision of Article 7(2) of the Model Law has now carried on longer than it
took to produce the entire Model Law. 27
The net result is that the law lags farther and farther behind the needs of
international business. The concern is not, and has never been, with those
situations in which the parties are able to arrange their affairs so as to make
plain their intentions for dispute resolution. The concern is with the
increasingly rapid and routine transaction of business across borders,
particularly business between small firms and sole proprietorships, in which
there is little or no scope for negotiating the form or forum for dispute
resolution. It is in these situations, just as in the traditional contexts of
commodities associations, that access to familiar and reliable dispute
resolution is becoming as important a feature of doing business as the ability
to rely on standardized trade terms. We may well be approaching the tipping
point at which it will simply no longer make sense to say that it is wrong to
presume that the parties’ reasonable expectations would be met through
international commercial arbitration despite the absence of a written
agreement to that effect.

25. See supra note 17 and surrounding text.

26. Toby Landau, The Written Form Requirement for Arbitration Agreements: When “Written”
Means “Oral,” in CONG RESS SERIES: IMPORTANT CONTEMPORARY, QUESTIONS—XVITH INTERNATIONAL
ARBITRATION CONG RESS , LONDON , 2002 (2002).
27. Alan Uzelac, Written Form of the Arbitration Agreement: Case Law and the Current Work of
UNCITRAL, presented at Celebrating Success: 20 Years UNCITRAL Model Law on International
Commercial Arbitration (Mar. 17, 2005).
2005-06] THE CISG AND THE WRITING REQUIREMENT IN ARBITRATION 163

The success of the CISG, with its presumptive application of

internationally harmonized standards suggests the way forward. The many
references in the Convention to provisions for dispute resolution in
international sales contracts underscores the view that arbitration agreements
need not be treated differently from the other provisions of international sales
contracts. For example, Article 19(3) lists provisions for the settlement of
disputes among those relating “to the price, payment, quality and quantity of
the goods, place and time of delivery, extent of one party’s liability to the
other” as material provisions of the contract.28 Article 81(1) gives effect to the
principle of separability, under which a dispute resolution clause survives the
avoidance of the balance of the terms of the contract.29 The inclusion in the
CISG of these references to dispute resolution clauses suggests that the other
articles of the Convention, including the Article 11 provision for freedom
from formality, could also apply to dispute resolution agreements, including
those for arbitration.
Admittedly, Article 90 of the CISG provides for deference to international
agreements, raising the possibility that, despite the treatment of the dispute
resolution clause as just another term of the contract, the CISG intended to
permit the writing requirement of the New York Convention to prevail.30
Indeed, the concern that the writing requirement for arbitration agreements
could be modified only by renegotiating the terms of the New York
Convention has contributed considerably to the reluctance to engage in serious
review of it. However, a careful reading of Articles II and VII suggests that
the Convention need not impede progress in this area and may even to
promote it. Article II, which provides for the writing requirement, merely
mandates the recognition of arbitration agreements in writing;31 it does not

28. CISG art. 19(3) provides that “[a]dditional or different terms relating, among other things, to
the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party’s
liability to the other or the settlement of disputes are considered to alter the terms of the offer materially”
(emphasis added).
29. CISG art. 81(1) provides that:
Avoidance of the contract releases both parties from their obligations under it, subject to any
damages which may be due. Avoidance does not affect any provision of the contract for the
settlement of disputes or any other provision of the contract governing the rights and obligations
of the parties consequent upon the avoidance of the contract.
30. CISG art. 90 provides that “[t]his Convention does not prevail over any international agreement
which has already been or may be entered into and which contains provisions concerning the matters
governed by this Convention, provided that the parties have their places of business in States parties to such
agreement.”
31. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards
art. II(1) (1958) [hereinafter New York Convention] states:
164 JOURNAL OF LAW AND COMMERCE [Vol. 25:153

prohibit the recognition of arbitration agreements in other forms. Clearly,

mere permission in the Convention to recognize arbitration agreements other
than in writing is not enough to create certainty across legal systems and to
promote confidence in the recognition of the ensuing award.32 However, this
is where the entitlement to benefit from a more favourable law under Article
VII of the New York Convention comes into play.33
To the extent that the existence and validity of a dispute resolution clause,
like any other contractual provision, is determinable through reference to the
applicable law, Article 11 of the CISG may be directly relevant to the formal
validity of international sales contracts as applicable. This is supported by the
general proposition observed by the learned authors of Dicey and Morris that,
“the question whether a contract (or any term thereof) has come into existence
depends on the law by which the contract would be governed if the contract
(or term) were valid.”34 But it is also supported by the fact that although
Article 90 of the CISG encourages deference to the New York Convention,
Article VII(1) of the New York Convention affords the benefit of the
informality of the CISG, and both Article II(1) of the New York Convention
and Article 11 of the CISG permit the recognition of arbitration agreements
as valid despite the absence of writing. Perhaps more significantly, it accords

Each Contracting State shall recognize an agreement in writing under which the parties undertake
to submit to arbitration all or any differences which have arisen or which may arise between them
in respect of a defined legal relationship, whether contractua1 or not, concerning a subject matter
capable of settlement by arbitration.
32. See Decision of the Halogaland Court of Appeal (Norway), August 16, 1999, published in
Yearbook of Commercial Arbitration XXVII—2002 at 519 (Albert Jan van den Berg ed.), in which the
Norwegian court refused, pursuant to the writing requirement in Article II of the New York Convention,
to enforce the award even though the arbitration agreement was held to be valid as to form under the law
of the seat; see also ALAN REDFERN ET AL., THE LAW AND PRACTICE OF INTER NATION AL COMME RCIAL
ARBITRATION 136 (4th ed. 2005).
33. New York Convention art. VII(1) provides that:
The provisions of the present Convention shall not affect the validity of multilateral or bilateral
agreements concerning the recognition and enforcement of arbitral awards entered into by the
Contracting States nor deprive any interested party of any right he may have to avail himself of an
arbitral award in the manner and to the extent allowed by the law or the treaties of the country where
such award is sought to be relied upon.
In 2006, at its 44th session, UNCITRAL Working Group 2 on Arbitration considered whether
to adopt a recommendation: [T]hat article VII(1) of the Convention should be applied to allow any
interested party to avail itself of rights it may have, under the law or treaties of the country where
an arbitration agreement is sought to be relied upon, to seek recognition of the validity of such an
arbitration agreement.
U.N. Doc. ACN.9/WG.II/WP.139.
34. DICEY AND MORRIS ON THE CONFLICT OF LAWS 430 (Lawrence Collins et al. eds., 13th ed.
2000).
2005-06] THE CISG AND THE WRITING REQUIREMENT IN ARBITRATION 165

with the practical reality of ordinary commercial dealings. Businesspersons

are likely to be more aware of the terms of the agreement and perhaps even of
the effect of the applicable law on those terms than they are of the
interpretation that might be placed on them by a national court to which they
had not thought their dispute might be submitted. Where they operate in a
business environment that recognizes agreements without fixed requirements
as to form, the arbitrary imposition of such requirements by the application of
the law of some other country in the course of deciding whether to recognize
an arbitral award is unlikely to meet with the parties’ reasonable expectations.
Of course, this represents a relatively narrow opportunity for advancing
the law. It is confined to international sale of goods agreements governed by
the CISG, and beyond this, to those in which the parties’ intent to arbitrate
may be demonstrated with sufficient specificity to make the commencement
of the arbitration practicable. A history of dealings between the parties in the
industry that would indicate their expectations as to the composition of the
tribunal, the method of appointment, the terms on which the arbitration is to
be administered, and other logistical features of the arbitration would all be
important to establish evidence of the parties’ agreement and a means to
implement it. Nevertheless, relaxing the formal requirements for arbitration
agreements and thereby signaling the end of the presumption against
arbitration would mark a welcome step forward—not one that would produce
a situation in which parties would be likely to be forced into an arbitration to
which they had not agreed, but one in which an arbitral tribunal would be
afforded the opportunity to determine on all the evidence whether it had
jurisdiction under an expanded scope for the operation of Kompetenz-
Kompetenz, a principle with which we are becoming increasingly
comfortable. Perhaps, in time, a new standard for requirements of form will
emerge that would be similar to that of the Brussels Regulation for forum
selection clauses.35 Then, it would be possible, when agreeing to disagree,
just to have words.

35. See supra note 9 and surrounding text.