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Arbitration Agreement and Arbitral Award: The Online

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Original Article

Arbitration Agreement Journal of National

Law University Delhi
and Arbitral Award: The 1–17
© 2022 National Law
Online Perspective University Delhi
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DOI: 10.1177/22774017221094924
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Vandana Singh1 and Misha Bahmani1

Abstract
Nowadays, the use of technology has lightened the workload in many sectors
to some extent. International arbitration practice has become cost-efficient.
Although the concern has been when some legal instruments are not legally
accepted, they are subjective to fulfilment of precise requirements. This reflects
that arbitration agreements, as well as arbitral awards, which are drawn online,
test whether the old provisions are beneficial or not. This article elaborates on
the challenges which prevail while providing legal acceptance to digital arbitration.
The objective is to highlight the difficulties that municipal and international systems
come across while following the procedural aspect. The use of technology and
maintaining international standards in the commercial sector globally should
encourage the practice of harmony and proper enforceability.

Keywords
Arbitral award, arbitration agreement, international commercial arbitration, law,
online arbitration

Introduction
Nowadays, the use of technology has become an integral part of our daily lives. In
the economic sector, it has its impact in a speedy manner, and globalism is pro-
moted properly. There has been a rapid rise in commercial activities due to glo-
balisation. With the introduction of better technology with time, globalization has
brought many countries together. The use of technology promotes higher
participation of foreign investors.1 The global market has welcomed technology
with a brighter perspective by making itself a great platform for competition.

1
Thomas Schultz, Information Technology, and Arbitration: A Practitioner’s Guide 1 (1st edn., Kluwer
Law Publication, 2006).

1
USLLS, GGSIP University, New Delhi, Delhi, India.

Corresponding author:
Vandana Singh, USLLS, GGSIP University, New Delhi, Delhi 110078, India.
E-mail: vandana.singh@ipu.ac.in
2 Journal of National Law University Delhi

International commerce has been shaped properly under technology. Due to this,
it has built up a challenging atmosphere with new expectations and possibilities.
Such changes have affected the commercial sector growth, where arbitration
plays a significant role in promoting international business activities. This has led
to new challenges in the arbitration practice.2 It plays a crucial role in making this
world paperless. Not only this, but it has also encouraged the practice of having a
cost-efficient arbitration process. Disputes which are submitted to arbitration are
more complex, and to overcome the difficulties, technology has provided a fast
alternative for addressing arbitral proceedings at an international level. It can
comprise a few stages or all the stages associated with arbitral proceedings.3
Unfortunately, it has not been legally accepted in some of the important legal
instruments which have slowed the growth in the trade and commerce sector.
Among them, the debate involves that are the arbitration agreement and arbitral
awards, both require specific formatting. The concern is to find out whether the
previous laws have evolved with it or if it has put a bar on the use of technology
to make an arbitral agreement’s conclusion and the arbitral award.4 In this article,
the authors seek to highlight the legal recognition given to digital arbitration
agreement under domestic and foreign perspectives and demarcate how both have
gained their validity by fulfilling different requirements, respectively.

Digital Arbitration Agreement

In this digital world, certain issues may arise concerning the validity of the arbi-
tration agreement when it is achieved in a digital atmosphere. The authors here
depict the challenges which have come across during this process.5 For instance,
a declaration has been done through a mail or with the help of a web application
among them which is complemented through a declaration by conduct which
includes activities like ordered goods delivery. With the use of click-wrap declara-
tion, the user can now decide by selecting the option ‘agree’. This shows that in a
web application until and unless such a declaration is not made by the user, it
would not proceed further. In a browse-wrap declaration, when the user clicks on
any option, it downloads the concerned file or accesses the website under the
displayed terms.6
Interestingly, the rules confining to the validity of the domestic arbitration
agreement and recognition of an arbitration agreement are different. Keeping the
above situation in mind, the authors here demarcate these rules in this article to
have a better understanding of them.

2
Id.
3
Reinmar Wolff, E-arbitration Agreements and e-Awards-arbitration Agreements Concluded in an
Electronic Environment and Digital Arbitral Awards, in Arbitration in the Digital Age: The Brave
New World of Arbitration 151 (Maud Piers & Christian Aschauer, eds., 1st edn., Cambridge University
Press, 2018).
4
Id.
5
Supra note 3 at 152.
6
Id.
Singh and Bahmani 3

Domestic Arbitration Agreement

Under the domestic arbitration agreement parameters, there are three challenges
that one needs to overcome. First, there can be issues with contract conclusion.
Second, in form, the validity of the terms is one of the prime concerns. Finally,
there is an issue interfacing with the law and the submissions made to the courts.7
Contract Conclusion
The contract conclusion relies on the contract law based on the place of arbitra-
tion. Keeping in mind the United Nations Commissions on International Trade
Law (UNCITRAL) Model Law on International Commercial Arbitration
(ICAML) provision, it focuses on the conflict of law rule meant for the validity of
such type of agreement.8 It is to be noted while dealing with the arbitration agree-
ment, its conclusion will follow the same rule because its impact on the contract
formation, as well as its validity, might be tough to differentiate. It has the same
effect on the unclear concluded contract where they will be addressed as invalid
contracts.9 There is no general determination to decide the conclusion of the
agreement when the rules are not harmonised. Interestingly, contracts can be con-
cluded through mails.10 In addition, when the statement conduct shows the offer
acceptance which has been made through the website, the same conclusions
would be made.11 The consent has to be clear on the website. For instance, when
the consent is shown on the website, it is clear to the other party.12 When signifi-
cant information is hidden below the download button, under such a situation, the
consent provided on the website does not follow such an approach.13
On the other hand, the click-wrap declaration has been an expressed consent in
most circumstances.14 The contract concludes with the website which is mostly
employed based on general terms and conditions. The national law under such a
scenario when there is the UN Convention on Contracts for the International Sale
of Goods (CISG), it is also not applied just like the other rules which were not
meant for contract conclusion.15 On grounds like when in a document there is an
arbitration agreement that is apart from the main contract, under such context, it
has to be referenced that could be explicit or implied.16 Moreover, a reasonable
opportunity should be provided to the customer to make sure that they have noted
the general terms as well as conditions. This can be done by the transmission

7
Supra note 3 at 153.
8
The UNCITRAL Model Law on International Commercial Arbitration, 1985, Article 34(2)(a)(i).
9
A. J. Van Den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial
Interpretation, Kluwer Law and Taxation 290 (1st edn., Kluwer Law International, 1981).
10
Principles, Definitions and Model Rules of European Private Law, available at https://www.
ccbe.eu/fileadmin/speciality_distribution/public/documents/EUROPEAN_PRIVATE_LAW/EN_
EPL_20100107_Principles__definitions_and_model_rules_of_European_private_law_-_Draft_
Common_Frame_of_Reference__DCFR_.pdf (last accessed 12 May 2020).
11
Id.
12
Supra note 10.
13
Specht v. Netscape Communication Corp. (2002) 306 F.3d 17.
14
Jaouad El Mjdoub v. CarsOnTheWeb.Deutschland GmbH (2015) 334 ECLI/EU/C.
15
Schlechtriem & Schwenzer, Commentary on the UN Convention on the International Sale of Goods
50–51 (4th edn., Oxford University Press, 2016).
16
Supra note 3 at 154.
4 Journal of National Law University Delhi

process so that the other party follows them at the time of agreement conclusion.
In addition, the terms and conditions have to be transparent and must be in the
contract language or drafted in a global language.17
Validity Requirements
There are issues concerning the form of the arbitration agreement among which is
when one applies the applicable law. When the parties decide, either such a decision
is absent, the arbitration agreement form is governed through lex arbitri, or the
arbitration agreement conclusion is made.18 Most national laws support the written
form for the agreement. The arbitration agreement form encourages harmonisation.
Sadly, there is a lack of prescribed form concerning the arbitration agreement
because of which it is considered invalid. However, certain common law nations
allow the validity of this agreement under their contract law. A great example is the
English Arbitration Act which accepts such practice.19

A. Written form
Under the American arbitration law, it has been demarcated that there should be
written provision which would serve the purpose.20 The Act has mentioned the word
‘in writing’; nonetheless, it has been inconsistently elaborated.21

1. Lack of complementary legislation: When the national law does not have
provisions for electronic communication, the general approaches could vary.
Traditionally, electronic communication has not been qualified as being
written. An e-mail will not be considered written, and it is only confined to
the computer’s display. E-mails do not often materialise, and the form
requirement cannot depend on the ground whether the e-mail is printed or
not. This has been because these provisions were made when there was no
electronic communication. However, at present, the electronic form is
approved as writing. It is not restricted to the materialised character and
includes e-mails that comprise written format. It is mostly used as evidence
in an arbitration agreement’s conclusion or its content.22 Signature has been
electronically accepted which fulfils commercial sector requirements.
Despite this, one needs to fulfil specific requirements for being an electronic
signature.23
2. Complementary legislation: The parties sometimes are stopped from using
electronic communication while the contract conclusion includes arbitration
agreement.24 There has been the use of complementary legislation where

17
Id.
18
Supra note 8, Articles 1(2) and 7.
19
The English Arbitration Act, 1996, Section 81(1)(b).
20
The United States Federation Arbitration Act, 1926, Section 2.
21
Toby Landau, The Requirement of a Written Form for an Arbitration Agreement When ‘Written’
means ‘Oral’, in International Commercial Arbitration: Important Contemporary Questions 19–20 (A.
J. Van Den Berg, ed., Alphen aan Den Rijin, Kluwer Law International, 2003).
22
The New York Convention, 1958, Article II(2).
23
The UNCITRAL Model Law on Electronic Commerce, 1996, Article 7(1).
24
Herbert Kronke, Patricia Nacimiento, Dirk Otto & Nicola Christine Port (eds.), Recognition and
Enforcement of Foreign arbitral ward, Global Commentary on the New York Convention 176 (1st
edn., Kluwer Law International, 2010).
Singh and Bahmani 5

traditional requirements are fulfilled by electronic means. Such laws are

mostly under their other laws instead of their arbitration laws.25
a. Written requirement: According to German laws, the personal
signature of the issuers comes under the written form. The name of
the issuer has to be mentioned in the declaration, and the electronic
documents should have a qualified electronic signature.26 The
emphasis is made on fulfilment of the basic purpose in writing so that
it could provide information.27 However, there is no need for a
handwritten or electronic form of signature in this practice.28
b. Signature requirement: One of the most common practices is that
signatures are considered to identify the declaration’s creator. By
this, the creator shows his consent and gives reliability in both
aspects. The UNCITRAL Model Law on Electronic Commerce
(ECML) maintains a flexible standard to locate its electronic
equivalent.29 It states that (a) when the law requires that there should
be a person’s signature which is to be done to fulfil the requirement
meant for data message, when such method is meant for a person’s
identification as well as to show that the person has given its consent
about the information which is in the data message, and (b) it is a
reliable method, the same as the one which was meant for generating
data message or communicated. Such practice has been adopted by
almost 69 states across the world.30

The UNCITRAL Model Law on Electronic Signatures (ESML) of 2001 focuses

on electronic signature31 and double-check the reliability test.32 It sets up the digi-
tal signature making it reliable by following the required conditions to be an elec-
tronic signature.33 When the parties have fulfilled the criteria and use it under such
circumstances, its effectiveness would be considered on the ground of its reliabil-
ity before when the signature is supplied. Due to this, there will not be any uncer-
tainty that follows the application of the reliability test by a court or arbitral
tribunal in the future.34 Furthermore, the underlying foreign certificates offer
equivalent reliability, it allows cross border recognition.35 With this, it eases the
burden on supplier’s certificate services to get licences in numerous nations.36
The Electronic Communication Convention (ECC) of 2005 which came into force

25
Supra note 3 at 156.
26
The German Code of Civil Procedure, 2005, Section 126.
27
The UNCITRAL Model Law on Electronic Communication, Guide to Enactment 1996 36 (1st edn.,
United Nations Publication, 1999).
28
Supra note 3 at 157.
29
Supra note 23, art. 7(1).
30
Mark Fenwick & Stefan Wrbka, International Business Law: Emerging fields of Regulation 172 (1st
edn., Bloomsbury Publishing, 2018).
31
The UNCITRAL Model Law on Electronic Signatures, 2001, Article 2(a).
32
Supra note 23, Articles 7(1)(b) and 6(1).
33
Supra note 31, Article 6(3).
34
The UNCITRAL Model Law on Electronic Signatures, Guide to Enactment 2001 8–36 (1st edn.,
United Nations Publication, 2002).
35
Supra note 31, Article 12(2).
36
Supra note 34 at 69.
6 Journal of National Law University Delhi

in 2013 adds to the reliability test an exception that when the parties’ identities, as
well as their intentions, are proven facts, the electronic signature does not require
to pass this test.37 For instance, under the eIDAS Regulation, it provides all the
requirements for being a qualified electronic signature as well as a handwritten
signature.38 To elaborate, the law states that to be a qualified electronic signature,
specific requirements have to be fulfilled and the signature must be a creation of
a qualified electronic signature creation device. Moreover, it has to rely on a qual-
ified certificate meant for electronic signature.39 The qualified trust service pro-
vider has to issue the electronic signature; otherwise, it will not be valid.40 When
the provider is in non-EU states, it would be accepted based on bilateral treaties
only.41

B. Harmonised nature
In the field of international trade practice, the form requirements must encourage
the practice of harmonisation. At the international level, the New York Convention
(NYC) recognises foreign arbitration agreements where it adopts form standards,
which are followed by some states nowadays.42This form requirement is meant
for an arbitration agreement under its national law which is according to lexi
arbitri.43

1. Record of the agreement: The ICAML of 1985 is one of the remarkable

creations which has promoted a unified form under the arbitration
agreements. For instance, it states that an agreement has to be in written
form when it is signed by the parties in a document or when there is an
exchange of letters, telegrams, telex or other means concerning
telecommunication which give the agreement’s record.44 It includes those
arbitration agreements which are concluded with the exchange of e-mails.45
When there is a click-wrap contract, it is required to fulfil the same
requirements.46
  In this situation, for the customer to whom this display appears, the
declaration has to be transferred from the website operator. When the
customer clicks ‘ok’ or ‘accept’ the offer, that declaration is sent back to

37
The Electronic Communications Convention, 2005, Article 9(3)(b)(ii).
38
The eIDAS Regulation, 2014, Article. 25(2).
39
Id., Article 3(12)
40
Id., Article 32(1)(b).
41
Id., Article 14.
42
Supra note 22, Article 11(1).
43
Gary B. Born, III, International Commercial Arbitration 694 (2nd edn., Alphen aan Den Rijin,
Kluwer Law International, 2014).
44
Supra note 8, Article 7(2)(2).
45
Christian Tautschnig, Legal Challenges and Opportunities for the next generation of Online
Arbitration, in Austrian Yearbook on International Arbitration 2015 92 (Christian Klausegger, Peter
Klein, Florian Kremslehner, Alexander Petsche, Nikolaus Pitkowitz, Jenny Power, Irene Weiser &
Gerold Zeiler, eds., 9th edn., Manzsche Verlags, Verlag C. H. Beck and Stampfli Verlag, 2015).
46
M. A. Alqudah, Enforceability of Arbitration Clauses in Online Business to Consumer Contracts,
28 J. Int. Arbitr. 72 (2011).
Singh and Bahmani 7

the concerned website which completes the exchanges of declarations. In

this process, any details, such as the website, a separate document or the
link, can be transferred, and they are required to fulfil the form requirement
as prescribed.47 The reference about the arbitration clause has to be
sufficient to incorporate the arbitration clause as per the law applied for the
arbitration agreement formation.48 When there is a browse-wrap agreement,
there will be no exchange until and unless the customer has given their
approval, and it is returned to the website operator for approval, this effort
will be considered under this Convention.49 One needs to observe the
means through which the customer has expressed his approval.50
2. Recorded in any form: The ICAML of 2006 has stated that in writing
means electronic communication has to be in an arbitration agreement
which has to be in writing when the information is accessible, and it can be
used for subsequent reference.51 In this, electronic communication stands
for any communication which the parties have made by the use of means of
data messages. Data messages comprise information that has been
generated, received, sent or stored by making use of an electronic, optical,
magnetic or similar means, and some of them include telegram, telecopy
or telex and electronic data interchange.52 From this, we can understand
that there is a huge transformation of provisions of this Convention by
making use of these words.53 It includes e-mails, browse-wrap as well as
click-wrap.54
3. Liberty of form: There is the removal of the condition of being in writing.
The arbitration agreement which is digitally concluded cannot be
considered invalid on the ground of lack of form when the national law has
adopted such provision.55

C. Other form requirements

There are some states which follow a specific form while dealing with non-stan-
dard cases. For example, the German Civil Code states that when there is a con-
sumer in an arbitration agreement, the documents have to be signed by the parties
and must be confined to arbitral proceedings.56 When there are national laws in
their other form provisions, there should be a provision that shows the existence
of a provision that states the existence form standards meant for electronic

47
Supra note 8, Article 7(2)(3).
48
Supra note 3 at 161.
49
Supra note 8, Article 7(2)(2).
50
Supra note 3 at 162.
51
The UNCITRAL Model Law on International Commercial Arbitration, 2006, Article 7(4).
52
Supra note 3 at 162.
53
Supra note 37, Articles 9(2) and 4(b), (c).
54
Supra note 45.
55
Supra note 51, option II, Article 7.
56
Supra note 26, Section 1031(5).
8 Journal of National Law University Delhi

communication. Despite this, when there is no such provision applicable, stan-

dards must be formed by interpretation of the form provision.57
Submission
The arbitration agreements are submitted to the court when their content or exis-
tence is disputed in the proceedings in the court or is legally required. On one
hand, the recognition, as well as enforcement of an arbitral award, took place
when a submission has been done concerning the domestic arbitral agreement. On
the other hand, one needs to submit an original arbitration agreement or a certified
copy. This ground has been abandoned under the ICAML of 2006 so that one can
understand the concept of ‘in writing’ in Article 35(2)(1), and it acts as an eviden-
tiary requirement.58 Article 8(1) of the ECML of 1996 has recognised data mes-
sage to be original when its integrity is assured and when it can be displayed. In
addition, the EEC has followed the same approach.59 When a copy passes the test,
it has no significance. The ECML will be taken into consideration when it reflects
on the provision of the ICAML of 1985 to understand what amounts to be
original.60

Foreign Arbitration Agreement

Recognition of the foreign arbitration agreement is recognised under the provi-
sion of the NYC.61 This section of the article has demarcated the requirements
which are to be fulfilled and has reflected on the manner a submission is done.
Contract Conclusion
This Convention illustrates the grounds which are to be considered for refusal of
recognition as well as enforcement of a foreign arbitral award.62 However, the
rules are the same which govern the domestic arbitration agreement. The place of
arbitration deals with the conclusion as well as arbitration agreement validity
where the only exception is when the parties have decided the law, this process is
similar to the provision of the ICAML.63 Under the provision of the NYC, force
out provisions of national law highlight its objective.64 However, when these laws
are based on general terms as well as conditions, focus is made on achieving other
goals. In the previous aspect, emphasis is made on providing evidence, and on the
other hand, in the general terms as well as condition situation between the parties,
focus is made on limiting the imparity.65 This depicts that there will be a huge risk
involved when there is any other understanding of the domestic court appraisal
57
Supra note 3 at 163.
58
Supra note 3 at 163.
59
Supra note 37, Article 9(4).
60
Supra note 8, Article 35(2)(1).
61
Supra note 22, Article II.
62
Id., Article V(1)(A).
63
Supra note 8, Article 34(2)(a)(i).
64
Supra note 22, Article II(2).
65
Supra note 3 at 165.
Singh and Bahmani 9

crumble from the assessment made by the foreign court concerning a specific
clause. Issues such as matters related to general terms as well as conditions, the
necessity of having a specific reference and the requirement of having an explicit
reference about arbitration agreement will be considered under the ambit of arbi-
tration agreement conclusion through national law.66
Validity and Recognition
The rules governing foreign arbitration agreements are demarcated under the
NYC. According to the rules, a written arbitral agreement must be recognised.
There should be an arbitral clause in an arbitral agreement or a contract. It should
be signed by the parties or contained in an exchange of letters or telegrams.67 It is
focused on an arbitration agreement’s recognition.68 When it does not fulfil the
requirements of the form, it remains valid.69

1. Irrelevance
Subsequently, no significance is given to the requirements of a form to rec-
ognise foreign arbitration agreements because it ejects all the domestic law
provisions which are meant for the form where it has aimed to preserve the
evidence in which lex arbitri plays a significant role.70

2. Parties’ signature
When an arbitration agreement is in writing, it has to be signed by the par-
ties. The parties’ signature is required in option I under Article II(2) only.71
Its purposes have to be beyond option II where the emphasis has been made
on the exchange of letter or telegram in which the parties’ identity is required
and their intent is supposed. Under option I, focus has been made on the goal
of connecting the declaration’s creatorship to the party with great reliability.
For instance, the signature copies that are given somewhere are not suffi-
cient.72 This shows that a mere party name cannot be considered to be in
writing in this option. However, e-mails or web-based declarations can be
included in a digital signature.73
The ECC has allowed the use of electronic communication when the
contracts are formed under the NYC which also includes arbitration
agreements.74 Rather, it is still not clear if this provision has broadened the
application’s scope of this Convention as mentioned under Article 1(1). In
this, the place of businesses of the parties to the contract is not in the same
place. The NYC highlights the arbitral award’s foreign nature which is not

66
Id.
67
Supra note 22, Article II(2).
68
Id., Article II(1)(2).
69
Id., Article II(2).
70
Supra note 3 at 166.
71
Supra note 43 at 680.
72
Supra note 3 at 166.
73
Id. at 167.
74
Supra note 37, Article 20(1).
10 Journal of National Law University Delhi

concerned about the places of business of the parties.75 This depicts that, in
this Convention, the focus is made on providing substantive rules which
allow the NYC and the rest to effectively operate in the electronic
atmosphere.76 This Convention does not support the parties’ business places
to be in contracting nature because different legal regimes would appear for
foreign arbitration agreements on the ground of parties’ places of business.
One can achieve effective operation when it is under Article II of the NYC,
and the ECC can be applied to any arbitration agreement.77 When the ECC
comes into force in states, they are required to implement the definition of a
signature under Article 9(3) of this Convention while applying Article II(2)
of the NYC. There is only a legal effect between the contracting states. The
ECC aims to adapt the NYC provision to modernise the process. In response,
the NYC obliges the contracting state to recognise the foreign arbitration
agreement disregarding whether or not the arbitration agreement shows the
contracting states are not in the same place of arbitration.78
Importantly, Article 19(1)(a) of the ECC gives a broader perspective;
however, its reciprocity declaration is in connection with the scope of
application under Article 1 of this Convention which does not govern the
arbitration agreement conclusion under Article II(2) of the NYC.79
The concern is to find out under Article II(2) of the NYC if the term
‘signed by the parties’ includes digital signatures when the ECC is not
applied. During that time, the drafter has not thought of electronic
communication. Despite this, the 1985 Conference welcomed the use of
modern technology to boost international trade practice. Fortunately, now
the telegram has been recognised under its provision.80 The impact of the
ECC is not based on international treaty law. Although it depends on NYC’s
autonomous interpretation, it is not affected by the declaration of the state by
restricting the scope of application of this Convention.81 Moreover, there can
be a state opt-out declaration,82 or there can be inapplicability made before
electronic communication comes into force.83
Surprisingly, the ECC was drafted by the UNCITRAL, which is the same
international body in the NYC.84 This Convention was adopted in 2005 by
the General Assembly. After a year, it was suggested that there should be a
broader interpretation of this provision to address the ‘in written’

75
A. J. Van Den Berg (ed.), XXII ICCA Yearbook Commercial Arbitration 619, 625 (Kluwer Law
International, 1997).
76
UN General Assembly, Report of the Working Group on Electronic Commerce on the Work of Its
Forty-three Session, UN GAOR, UN Doc A/CN.9/548 (15–19 March 2004).
77
Id. at 21.
78
Supra note 3 at 168.
79
Supra note 3 at 169.
80
Id.
81
Supra note 37, Article 19.
82
Id., Article 20(4).
83
Id., Article 24.
84
Supra note 3 at 170.
Singh and Bahmani 11

requirement.85 An autonomous interpretation should be followed when this

Convention enables the NYC to function properly in the electronic
atmosphere despite when these rules are not being bound legally. They
should be interpreted in such a manner that it surges the growth of the
international commercial sector.86 When the parties have signed the
arbitration agreement with a digital signature and have fulfilled
the requirements stated under Article 9(3) of the ECC, under such a situation,
these agreements would be considered under Article II(2) of the NYC.87

3. Exchange of letters or telegrams

When there is an exchange of letters or telegrams, they will be included in
an arbitration agreement. The provision applies to e-mails by way of anal-
ogy. It is to be noted that e-mails illustrate the telegram’s main characteris-
tics. This is because neither it is physically transmitted nor the sender’s
identity is authenticated.88 It includes click-wrap as well as browse-wrap
declarations although it needs an exchange of declarations. This will be pos-
sible when the website operator has made an offer which the customer has
accepted by clicking the button, either it has downloaded the file or it will
include similar means which has been reported back to the operator.89
One needs to remember that declaration is not exchanged when the
operator of the website has not made the binding offer; instead, it has invited
the customer to submit the offer when the operator has accepted it through
delivery or by any other conduct. Additionally, there will be no declaration
exchange when no message is sent back to the operator where there is
browse-wrap.90

4. Non-exhaustive character
Keeping in mind the perspective of the first recommendation made by the
UNCITRAL in 2006,91 Article II(2) is considered to have a non-exhaustive
character. It provides certain requirements which are to be fulfilled.92 In this
provision, there has been the use of the word ‘include’.93 Following this
approach, emphasis is made to fulfil the needs of the business community. It

85
UN General Assembly, Report of the United Nations Commission on International Trade Law on the
Work of Its Thirty-Ninth Session, UN GAOR, UN Doc A/61/17 (7 July 2006).
86
Supra note 3 at 170.
87
Id.
88
Chloe Z Fishing Co. Inc. v. Odyssey Re (London) Ltd. (2000) 1250 S. D. Cal. 109 F. Supp. 2d.
89
Haitham A. Haloush, The Authenticity of Online Alternative Dispute Resolution, 25 J. Int. Arbitr.
363 (2008).
90
Supra note 3 at 171.
91
Supra note 85.
92
Supra note 45 at 90.
93
UN General Assembly, Report of the Working Group on Arbitration and Conciliation on the Work of
Its Forty-fourth Session, UN GAOR, UN Doc A/CN.9/592 (23–27 January 2006).
12 Journal of National Law University Delhi

welcomes the participation of modern technology; therefore, one needs to

safeguard the spirit of this provision to have a better future.94

5. More favourable national laws

Form requirement is supporting the domestic law only where the application
of this provision is limited to foreign arbitral award’s recognition as well as
enforcement which is the result of the recommendation made by the
UNCITRAL in 2006.95 Article VII(1) of the NYC is applied by the way of
analogy, and based on this recommendation, it has focused on the arbitration
agreement.96 It is to be valued as a law meant for the state’s enforcement to
enforce the state’s conflict of law rules.97
Submission
To have a foreign award to be recognised as well as enforced, there should be a
submission of an original agreement referred to in Article II or a certified copy.98 It
has mere evidentiary value, and documents are required only when there is a dispute
in its content or existence.99 Due to the existence of this provision, now more favour-
able national laws can depend on where laws refrain from any arbitration agree-
ment’s submission requirement which is advised under the above-said provision.100
First, the focus is made on the autonomous understanding of the copy as well as
original, and second, there is a need to have clarity about technical implementation.
The provision permits an electronically concluded arbitration agreement in which
the procedural provision of this Convention under Article IV cannot obstruct its
recognition which has to be recognised through the provision of this Convention.101
When the ECC is applied, its provision must support what the role of being original
is meant for Article IV of the NYC. In a situation where it is not applied, this defini-
tion will be adopted because of its proper autonomous interpretation. In spite of this,
when there is a legal as well technical channel that supports electronic original
which has to be introduced in the court proceedings where foreign awards’ recogni-
tion, as well as enforcement, is not governed by this provision, it is restricted to the
civil procedure which is a non-harmonised national law.102

94
F. G. Mazzotta, The Written Form Requirement of an Arbitration Agreement in light of new means
of Communication, in Sharing International Commercial Law across National Boundaries: Festschrift
for Albert H. Kritzer on the occasion of his Eighteen Birthday 329 (C. B. Andersen & U. G. Schroeter,
eds., 1st edn., Wildy, Simmonds and Hill Publication, 2008).
95
Supra note 3 at 172.
96
A. J. Ven Den Berg (ed.), XXIX ICCA Yearbook Commercial Arbitration 660 (Kluwer Law
International, 2004).
97
A. J. Ven Den Berg (ed.), XXXI ICCA Yearbook Commercial Arbitration 683 (Kluwer Law
International, 2006).
98
Supra note 22, Article IV(1)(b).
99
Supra note 8, Article 35(2)(1).
100
Supra note 22, Article VII(1).
101
Id., Article II.
102
Supra note 3 at 174.
Singh and Bahmani 13

Digital Arbitral Award

The authors reflect on those digital awards which are having concluding arbitra-
tor’s names or when it is required to be digitally signed. Moreover, it illustrates
when there are digital awards with digital signatures of advanced nature. These
situations are elaborated by the authors in the following to have a proper
understanding.

Domestic Awards
This section focuses on the difficulties that one comes across which are related to
form requirements, when they are delivered to the parties and at the time of
submission.
Form
Lexi arbitri governs the form requirements meant for domestic arbitral awards.
Most countries’ legal systems accept that there should be a written award signed
by the arbitrators. Few nations support that there should be a signature, and the
award should be in written form. For instance, under the French Civil Code, these
requirements have to be followed.103 However, there are some countries, under
their legal framework, where all the arbitrators must sign, and in some nations,
they must gain the majority of arbitrators’ signatures or signed by the chairman.
Despite this, some nations have denied the existence of an arbitral award, and oth-
ers have assumed grounds for setting it aside. They have given the authority to
give the form to the parties.104 When the parties in the agreement have not allowed
digital awards, this results in uncertainty at the time of interpretation. Often, the
award has to be written and should have the signature of an arbitrator. The con-
cern is to see if the requirements are fulfilled. Few nations have addressed them
directly under their acts or rules. For example, the Dutch Civil Code illustrates
that an award can be made electronically and have a signature electronically.105
The applicable law that permits electronic awards has prescribed their form
requirements. When they are silent, the national law is considered. It has should
be interpreted keeping in mind the provisions of the ICAML.106
Delivery
The provisions concerning delivery include the use of data carriers or e-mails. The
focus has been made on having digital delivery. It is the impact of using flexible
words under its legal instrument. The signed awards are required to be delivered
to all the parties concerned.107 Across the globe, many nations have supported

103
The French Code of Civil Procedure, 2011, Article 1480(2).
104
Supra note 3 at 175.
105
The Dutch Code of Civil Procedure, 2019, Article 1072b(3).
106
Supra note 8, Article 31.
107
Supra note 8, Article 31(4).
14 Journal of National Law University Delhi

such practices. For instance, under the American context, a notice has to be given
along with a copy of the award.108
Submission
When a domestic award is recognised as well as enforced, it has to be submitted
to the court. Nonetheless, under the Model Law, it was earlier required that it has
to be original, or a certified copy has to be delivered to the court.109 However, in
2006, these grounds were abandoned to overcome the real challenges like when
there are issues concerning certification as well as authentication.110 Certain issues
have arisen like what is the difference between an original as well as a copy under
the digital environment. When there is no applicable law to govern practice related
to the original, the interpretation can be done following the perspective of the
ECML.111 The award has to be authentic, and the applicable law should demarcate
the competent authority as well as procedure meant for digital award’s
authentication.112

Foreign Awards
The foreign arbitral awards are governed by the NYC. There are certain chal-
lenges which the parties face while fulfilling the form requirements like when
they are delivered to the parties and finally when the submission is done.
Form
Under this Convention, there has not been any expressed demarcation about the
form’s requirements.113 It can be required when they are part of the award’s notion.
In addition, it can bar the award to gain binding nature. Under such circumstances,
where there is an absence of these certain conditions, it would amount to the
refusal. This notion has been a matter of concern for a long time. It has been sug-
gested that this convention depends on the autonomous notion, whereas few
believe that it depends on national laws that have an impact where lex arbitri or
lex fori either combine alternatively or cumulatively. It supports an alternative
combination of autonomous standards as well as lex fori. This Convention wel-
comes the use of modern technologies.114 With common standards in the form’s
requirements, it has been allowed in the digital sector. Autonomous interpretation
follows the same approach as prescribed under the ICAML. Moreover, when the
award is not binding, it still has its existence, or the award would be refused.115

108
The United States Uniform Arbitration Act, 2000, Section 19(a)(3).
109
Supra note 8, Article 35(2)(1).
110
Supra note 3 at 177.
111
Supra note 23, Article 8(1).
112
Supra note 8, Article 35(2)(1).
113
Supra note 3 at 178.
114
Id. at 179.
115
Id.
Singh and Bahmani 15

Delivery
This Convention is silent on this aspect. When there is an absence of any provi-
sions confining to how the delivery has to be made, the recognition, as well as
enforcement of the foreign award, is affected by it. For instance, its provisions
have been highlighted on grounds of refusal.116 When the awards are delivered by
following lex arbitri, its recognition as well as enforcement cannot be refused.117
Submission
There should be an original award, or there should be a certified copy that is to be
submitted to the court.118 This happens when they are supported by national law.
Under this Convention, the use of the term ‘original’ has to be interpreted follow-
ing the provisions of the ECC.119 One needs to remember that authentication is
governed by the national law, and they are required to fulfil all the form require-
ments focusing on having digital awards authenticated.120

International Standards
It is argued that form requirements in online commerce contracts which include
arbitral agreements would be not significant when the electronic documents are
adequately definite which can help in the future. Some countries have followed a
wider approach to form requirements under the NYC; among them are civil law
nations such as France, Germany, Greece and Switzerland. These nations have
included e-mail communication under the ambit of electronic communications.121
For instance, once the Swiss Supreme Court held that the exchange of letters or
telegrams would also include other means of communication keeping in mind the
provision of the NYC.122 It was made clear that the form requirements have been
fulfilled under the NYC as required by the Swiss Code.123 Moreover, it is stated
that online arbitration hearing could be different where the arbitral tribunal has to
maintain standards to hear the dispute properly by observing the parties’ perspec-
tive and in the presence of technical facilities. However, few nations do not require
any specific form requirements, and the digital arbitral award is recognised. For
example, it includes the English arbitration law and the Swiss Code.124 On the

116
Supra note 22, Article V(1)(e).
117
Supra note 3 at 180.
118
Supra note 22, Article IV(1)(a).
119
Supra note 81, Article 9(4).
120
N. Horn, Arbitration and electronic communications: Public Policy, 12 Int. Arbitr. Law Rev. 112
(2009).
121
Ihab Amro, Online Arbitration in Theory and Practice: A Comparative Study in Common Law
and Civil Law Countries, available at http://arbitrationblog.kluwerarbitration.com/2019/04/11/online-
arbitration-in-theory-and-in-practice-a-comparative-study-in-common-law-and-civil-law-countries/
(last accessed 16 May 2020).
122
Supra note 22, Article II(2).
123
The Swiss Federal Code on Private International Law, 1987, Article 178(1).
124
Supra note 121.
16 Journal of National Law University Delhi

other hand, it is required that the arbitral award should be in written form under
some national laws. It is suggested that a signed award, as well as a printed copy
of the digital arbitral award, should be issued by the arbitrators. It has been argued
under national law in nations that a natural person is allowed to act as an arbitra-
tor. It is believed that cooperation between artificial intelligence and arbitration
would be beneficial for all the participants as it will make the mechanism more
effective.125 However, to enhance trade worldwide, the UNCITRAL has made a
remarkable effort in modernising rules governing the business sector. It has been
more than 50 years since commercial reforms came into existence. To gain confi-
dence in electronic commerce, the technology must promote equal treatment.
Significantly, technological neutrality must be achieved in reality.126 To improve
the ranking of the nations in the ease of doing, technology must be used fairly
which can be of great help in boosting foreign investment.

Conclusion
Online arbitration has been an important component of online dispute resolution
which is beneficial in solving disputes which have arisen out of contractual obli-
gations done online. Such practice encourages cross border transactions and
enhances the significance of international arbitration practice worldwide. It is
necessary that there should not be violation of the public policy notion. The pres-
ence of digital arbitration agreements as well as a digital arbitral award has made
the international arbitration regime more attractive. The electronic instruments
will not be gaining any legal acceptance which has badly affected their perfor-
mance level. For instance, online arbitration is legally accepted under some of the
national arbitration laws. In some of the common law as well as civil law nations,
there is no requirement of any specific form among which is the English arbitra-
tion law, which states that the parties are free to decide on the form requirement.127
It is to be noted that the ICAML has focused on maintaining harmony in the com-
mercial sector although the NYC is comprehensive in its practice. Despite this,
the ICAML still requires complementary legislation that could support new mod-
ern technologies. The risk involved in the digital arbitral award is higher than in
the digital arbitration agreement. It involves challenges, and under this circum-
stance, the form requirements meant for arbitration agreement lead to an alterna-
tive opportunity to signatures. Being speedy and convenient, it is beneficial for
arbitration agreements in maintaining daily records with help of modern technol-
ogy. With the COVID-19 impact, one needs to understand the necessity to main-
tain digital records. The activities belonging to distinctive businesses organise
their work with the support of harmonised instruments. It is mostly utilized in
arbitration agreements; only a small portion of digital arbitral awards are involved
in it. Moreover, form risk is higher in arbitration agreements than in arbitral

125
Id.
126
About UNCITRAL, available at https://uncitral.un.org/en/about (last accessed 16 May 2020).
127
Supra note 19, Article. 52.
 Singh and Bahmani 17

awards. When the arbitral awards have enforceable status, it would abstain from
delivering a digital award; therefore, to achieve this, it is the responsibility of the
arbitral tribunal to make every possible step.128

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research,
authorship and/or publication of this article.

Funding
The authors received no financial support for the research, authorship and/or
publication of this article.

ORCID iD
Vandana Singh https://orcid.org/0000-0002-0613-4195

128
Supra note 3 at 181.

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