48. Excerpt from a decision of the 2nd Civil Chamber dated 5 November 1985 in the case of Tracomin S.A. versus Sudan Oil Seeds Co Ltd (pubic law appeal)

Summary

Arbitration agreement in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed in New York on 10 June 1958.

1. Any arbitration agreement set forth in writing and accepted orally or tacitly does not comply with Article II, para. 2 of the New York Convention. Not only must the proposal to submit a pending dispute to arbitration be in writing, but the other party must also provide a written acceptance of such proposal which it shall communicate to the party having made it. The arbitration clause or submission agreement may also result from an exchange of faxes (recital 5).

2. The existence of an ad hoc arbitration agreement, entered into when a dispute arises, exonerates the courts from ascertaining whether the agreement could be based on a prior arbitration clause and whether the said clause complied with the formal requirements set forth in Art. II, para. 2 of the New York Convention (recital 6).