Transnational arbitration agreements as contracts: in search of the parties’ common intention

Although agreements to arbitrate constitute contracts that are distinct from those in which they are contained, the practice of arbitral statutes, international instruments, and arbitral tribunals is to conflate the parties’ common intention to be bound with the particular form required of the arbitral agreement. This sui generis (conflated) contractual nature is unique to arbitral agreements and serves the transnational character of international arbitration. The required form, which is conflated with the parties’ common intention, is meant to serve a procedural, rather than a substantive/contractual purpose, namely the triggering of the jurisdiction of the arbitral tribunal. All this is in sharp contrast with the rigid assessment of offer, acceptance and common intention to be bound that permeates contracts under national laws, all three of which are distinct actions. It further serves as evidence that transnational law does not neatly distinguish between substantive and procedural law, with contracts being an inextricable part of this transnational legal process.