Incorporation of Arbitration Agreements by Reference under English Law: Time to Free It from Its Nineteenth Century Shackles?

Incorporation of arbitration clauses (or arbitration agreements) by reference is a concept that has been around for well over a century. It all began with the explosion in international trade in the nineteenth century, coupled with the growth of fairly standard documentation for individual transactions, which was normally connected to the manner in which goods would move from the seller in country A to the buyer in country B. These documents included bills of lading, charterparties, and the contract itself, as well as letters of credit, guarantees, etc. From international trade to construction and insurance, the idea of A and B incorporating words from another document sufficient (or not) to create a binding arbitration agreement has troubled the English judiciary for more than 125 years, since when there have been dozens of reported cases. Where English law is now on the matter, however, is not quite clear. While the courts of other common law jurisdictions (particularly Singapore and Hong Kong) have, we think, taken a much more pragmatic and modern attitude toward the problem, it can fairly be said that English law has stubbornly remained anchored in the past (though, to be fair, there are - as this article will hopefully demonstrate hints of change). div/div