CIArb Features

Caveat arbiter: the devil is in the [lack of] detail

12 Feb 2019

“Is the Devil in the Detail?” was the title of Dr Melis Özdel’s Fifth CIArb Roebuck Lecture, back in 2015. In her talk, Dr Özdel taught us about the intricacies of the incorporation of arbitration clauses in maritime contracts, a subject that “has kept the minds of lawyers, judges [and arbitrators] busy for centuries.”[1] Indeed, knowing whether an arbitration clause was incorporated into a collateral contract or not is one of the most pressing questions facing an arbitral tribunal on a preliminary ruling on jurisdiction.

This issue is even more consequential in international arbitration, where there is no uniformity in the treatment of this point of law on a global level. As Dr Özdel points out, “this brings with it the risk of concurrent litigation and arbitration proceedings, as well as enforcement problems under the New York Convention.”[2] Different legal traditions treat the question in such a diametrically opposed fashion that, in practice, it might appear to arbitrat