Originally from Transnational Litigation and Commercial Arbitration - 3rd Edition 

6.3. PRE-AWARD ENFORCEMENT

Most of the problems to be considered under the heading of “preaward” enforcement relate to the recognition and enforcement (by national courts) of the arbitration agreement itself; a related enforcement issue concerns the availability of so-called interim measures, such as injunctive relief, as a (pre-award) judicial adjunct to the arbitral process.1

6.3.1. Contract Formation, Interpretation & Validity

Promise binds

As regards recognition and enforcement of the parties’ agreement to arbitrate, the main idea is not difficult to grasp: if two merchants have actually agreed (exchanged mutual, voluntary promises) to arbitrate – and, by necessary implication, not to litigate – the general freedomof-contract rule will dictate that they are bound by their word.

Binding agreement?

For this reason, such problems as do arise when it comes to the
enforcement of arbitral agreements are likely to involve issues essentially similar to those we have previously encountered when courts are asked to enforce private agreements to litigate before the national courts of a given jurisdiction.2

In the present context, to determine whether the parties concerned are bound to arbitrate a given dispute, we need to ask whether the relevant rules which govern the contract formation process lead to the conclusion that these particular parties actually have entered (“made”) an arbitration agreement. If we pass that hurdle, we then need to ask whether that agreement is “binding” upon the parties, or whether — by virtue of the applicable rules of “formal” and “substantive” validity — the party who seeks to avoid arbitration has a viable “defense” to enforcement of the arbitration agreement.

Contract formation

The initial question of whether the parties concerned have actually “made” an arbitration agreement may depend on the application of traditional contract formation (“offer and acceptance”) rules. A good illustration is the Lark International case excerpted below.