International arbitration agreements usually take the form of clauses in commercial contracts or investment treaties by which the Parties agree to arbitrate future disputes (agreement to compromise). International arbitration agreements are stand alone contracts which, according to the separability doctrine, will survive the underlying contract which contains them in the event that such contract is declared null.
International arbitration agreements can be drafted in many different manners and take all shapes and forms, and the terms “ICC arbitration” can sometimes be sufficient to refer a dispute to arbitration under the aegis of the International Chamber of Commerce in Paris. However, in order to avoid uncertainty in the arbitral process, it is most prudent for the Parties to include, in their international arbitration agreements, the method of appointment, number and qualifications of the arbitrators, the scope of the disputes submitted to arbitration, the seat of the arbitration, the language of the arbitration, the applicable law and an an arbitral institution which will provide arbitration rules governing procedural and administrative matters. Depending the type of dispute which might arise out of the contractual relationship, the Parties may wish to go further and specifically provide for confidentiality, fast-track procedural rules, costs of representation, etc.
Cautious Parties most often use international arbitration agreements based on the clauses suggested by the International Chamber of Commerce in Paris (ICC) and the London Court of International Arbitration (LCIA) available at https://iccwbo.org/products-and-services/arbitration-and-adr/arbitration/standard-icc-arbitration-clauses/ and https://lcia.org/dispute_resolution_services/lcia_recommended_clauses.aspx
In the event that a dispute arises and the contract does not contain a dispute resolution clause, the Parties may agree to a “compromise” in which case the international arbitration agreement takes the form of a submission agreement providing for arbitration of an already existing dispute.
As international arbitration agreements refer a dispute to a non-governmental decision maker that will issue a final and binding award, they should not be mistaken with forum selection agreements which provide for the Parties’ agreement that a future dispute shall be resolved in a particular national court (forum) and result in a national court judgment.