The Finnish Arbitration Act indirectly provides the definition of arbitration agreement in its section 2:
“Any dispute in a civil or commercial matter which can be settled by agreement between the parties may be referred for final decision by one or more arbitrators. It may also be agreed that such disputes, which in the future arise from a particular legal relationship specified in the agreement, shall be
56 See Born 2009, p. 1133.
57 See e.g. Ibid., p. 1133, 1137; Lew 2003, pp. 146-147, Gaillard-Savage 1999, pp. 280-281.
finally decided by one or more arbitrators, unless otherwise provided in statutory law.”58
The provision makes the distinction between two types of arbitration agreements:
arbitration clauses and submission agreements. The former is defined as an agreement to subject all future disputes related to the underlying contract to arbitration, whereas submission agreements are made when a dispute between the parties has already arisen.
Submission agreements and their formation may be significantly different from that of arbitration clauses because it is likely there are hostilities between the parties (as the dispute already exists), the nature and scope of the dispute is already known to them and they might have conflicting interests in choosing the appropriate forum (arbitration in relation to litigation) or the timeliness required (one party may want to delay the process for as long as possible).59 However, in KKO 2013:84 the agreement was in the form of an arbitration clause, concerning future disputes. Therefore, submission agreements will be delimited and the thesis will concentrate on discussing arbitration clauses only (although naturally both types of agreements are sometimes congruent).
As stated above, Finland has not adopted the UNCITRAL Model Law in its national legislation60, but it was used as a model when enacting the revision of the Finnish
Arbitration Act in 1991.61 In addition to the Model Law, the provisions of the New York Convention were used as well, especially concerning the definition and the requirement of agreement in writing when enacting the law.62
As stated in the New York Convention:
“Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.”63
58 See Section 2 of the Finnish Arbitration Act (translation, see Paulsson 1984, Annex I of the Finland Chapter, p. 1).
59 See Redfern-Hunter 2009, p. 121.
60 See supra note 40.
61 See HE 202/1991.
62 See Ibid.
63 See Article II (1) of the New York Convention.
The UNCITRAL Model Law provides a definition of arbitration agreement almost identical to the one above.64
As may be distinguished from the definition, there are certain substantial characteristics to arbitration agreements in addition to the written form and the separation of arbitration clauses and submission agreements. First of all, a defined legal relationship between the parties is necessary. However, it does not have to be contractual, as, for instance, tortuous liability.65 Moreover, it may be real or implied66 – a fact which is important in the case KKO 2013:84 due to the lack of any such original contractual relationship between the signatories and the non-signatory party.
Moreover, the subject matter of the dispute must be “capable of settlement by
arbitration”. This requirement refers to the substantive validity of the agreement. It is similar and may be confused with the non-arbitrability doctrine. On the basis of the former, an arbitration agreement may be challenged e.g. by invoking fraud or duress or other grounds of contract law.67 Non-arbitrability refers to situations where the subject matter of the dispute belongs to a category of issues which are considered to be non-arbitrable, i.e. specific reasons dictate such disputes to be brought to normal litigation.68 However, non-arbitrability relates to the nullity of arbitration awards, and therefore does not concern the thesis and will be left out of the scope of this work.69
Finally, arbitration agreements are almost universally (including in Finland) considered to be “separable” from the underlying agreement.70
“The arbitral clause is autonomous and juridically independent from the main contract in which it is contained”71
64 See Article 7 of the UNCITRAL Model Law.
65 See Redfern-Hunter 2009, p. 93.
66 See Ibid.
67 See Born 2009, p. 705.
68 See Lew 2003, p. 129-130; Redfern-Hunter 2009, p. 94-95.
69 For further reading on the subject of arbitrability, see e.g. Mistelis-Brekoulakis 2009.
70 See Gaillard-Savage 1999, p. 197; Möller 1997, p. 28; see also Born 2009, p. 312; Kurkela-Uoti 1995, p.
28.
71 See Born 2009, p. 312, referring to Final Award in ICC Case No. 8938, XXIVa Y.B. Comm. Arb. 174, 176 (1999).
The separability doctrine, also referred to as autonomy of the agreement, defines the independent nature of the arbitration agreement with regard to the underlying agreement in which the arbitration clause is included.72 The doctrine has been adopted universally, including in Finland.73 According to the doctrine, even if the underlying “main” contract is invalid, it does not result in the invalidity of the arbitration agreement. The purpose of the separability doctrine is to ensure that the purpose of the parties to bring all disputes to arbitration is secured, and mistakes such as those leading to formal invalidity of the underlying agreement do not create an obstacle to arbitration.74 Separability also provides for the basis of the arbitrators’ competence to rule on their own jurisdiction.75 Moreover, the question of separability may arise when contemplating party consent. It is possible that a court or an arbitral tribunal concludes that a party has given assent to the underlying agreement but has not assented to the arbitration agreement.76