A Common Law Approach to the Parties’ Intention in Arbitration Agreements

Abstract

Offer and acceptance must be supplemented by the parties’ common intention, failing which there is no contract. Arbitration clauses are separable from the contract in which they are contained and hence constitute distinct contracts, albeit of a procedural nature. Even so, the courts typically conflate the parties’ common intention as expressed or implied in the main contract with the common intention required in the arbitration clause. Although technically incorrect, courts in the common law tradition are generally content with this approach and do not question its rationale. The article argues that while such an approach is acceptable, there may well be cases where a party can validly argue that this conflated common intention was misplaced.