The Arbitration Agreement

In one line

Section 7 defines the arbitration agreement, requires it to be in writing, and then defines writing so widely that an exchange of pleadings in which the agreement is alleged and not denied satisfies it.

Section 7 in full

7(1): "arbitration agreement" means an agreement by the parties to SUBMIT TO ARBITRATION all or certain disputes which HAVE ARISEN OR WHICH MAY ARISE between them IN RESPECT OF A DEFINED LEGAL RELATIONSHIP, WHETHER CONTRACTUAL OR NOT.

Three points are in that sub-section. The agreement may cover EXISTING disputes, in which case it is a submission agreement, or FUTURE disputes, in which case it is an arbitration clause. It must relate to a DEFINED legal relationship, so an agreement to arbitrate anything that may ever arise between the parties is too wide. And the relationship need not be CONTRACTUAL, so a tortious or statutory relationship will do.

7(2): an arbitration agreement may be in the form of an ARBITRATION CLAUSE in a contract or in the form of a SEPARATE AGREEMENT.

7(3): an arbitration agreement SHALL BE IN WRITING.

7(4): an arbitration agreement is in writing if it is contained in:

(a) a document SIGNED by the parties;

(b) an EXCHANGE of letters, telex, telegrams or other means of telecommunication, INCLUDING COMMUNICATION THROUGH ELECTRONIC MEANS, which provide a record of the agreement; the words on electronic means were inserted by the 2015 amendment with effect from 23 October 2015, and they put email and other electronic exchanges beyond argument;

(c) an EXCHANGE OF STATEMENTS OF CLAIM AND DEFENCE in which the EXISTENCE of the agreement is ALLEGED by one party and NOT DENIED by the other.

7(5): the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement IF the contract is in writing AND the reference is such as to MAKE THAT ARBITRATION CLAUSE PART OF THE CONTRACT.

What section 7(4)(a) does not require

A signature is required only under clause (a), and clause (a) is one of three alternatives. An arbitration agreement may therefore be perfectly valid without either party signing anything, provided the exchange under (b) records it or the pleadings under (c) allege and fail to deny it.

And even under clause (a), what must be signed is a DOCUMENT containing the agreement, not the arbitration clause itself.

Section 7(5): incorporation by reference

Two conditions and both must be met: the contract must be in writing, and the reference must be such as to make the arbitration clause part of the contract.

The distinction the courts draw is between a reference to another CONTRACT and a reference to a standard form or set of RULES. A general reference to a standard form of terms carries the arbitration clause with it; a general reference to a separate two-party contract does not, and needs a special reference showing that the arbitration clause was intended to be incorporated.