Originally from A Practical Guide to International Arbitration - Second Edition 

Preview Page

INTRODUCTION 

Parties to an arbitration agreement promise to arbitrate any disputes that arise under that agreement. If a dispute arises and one of the parties refuses to arbitrate, or opts to litigate rather than arbitrate, in-house counsel for the other party will have to make a strategic decision whether to compel the first party to arbitrate in accordance with their agreement.  Arbitration agreements are binding contracts, so the process of compelling arbitration is tantamount to enforcing that contract or remedying its breach.   

The text of the arbitration agreement will serve as the primary source of the parties’ rights and obligations with respect to arbitration. Most arbitral tribunals established by virtue of an arbitration agreement have the authority to interpret that agreement and determine the extent to which the parties are bound by the agreement and how they must comply with it.  But threshold disputes concerning the validity and scope of an arbitration agreement may take place before a national court in the first instance, depending on the jurisdiction and the circumstances. The party resisting arbitration may invoke the jurisdiction of a court to avoid arbitration, or the party seeking to compel arbitration may rely on the coercive powers of a court to protect the arbitral process and get it back on track.   

A. The Obligations that Derive from a Valid Arbitration Agreement 

Most arbitration agreements entail both negative obligations and positive obligations.  

1. Negative Obligations 

Most people think of the negative obligations first. In particular, parties to a valid arbitration agreement are prohibited from trying to resolve any disputes falling under the agreement in court or by any means other than arbitration. One of the cornerstones of international arbitration is exclusivity. A valid arbitration agreement designates the arbitral tribunal as the one and only forum to resolve any disputes arising out of that agreement.