Drafting an Effective Arbitration Clause in the Light of the Issues Posed by E-Commerce

The consent of the parties to submit to arbitration by a binding arbitration agreement is the cornerstone of international arbitration. With the upsurge in global electronic ("e-commerce") transactions¹ entered into as a result of email communications or via the Internet by way of a trading platform (using a mechanism provided on a web site), contracts are increasingly entered into which are "paper-less" or not recorded in writing in the historical sense of that phrase. Where arbitration is the chosen method of dispute resolution in these contracts, then the arbitration agreement entered into is generally in electronic form.²

The threshold question, which arises, is whether such e-commerce arbitration agreements are enforceable - there may be doubts if the applicable principles of law established by legislation and case law are inadequate or outdated.³