187 / 522
practice, such method is globally accepted. This tendency also serves
the aim to simplify a dispute resolution via arbitration, and to meet the
requirements of international trade.
In U.S law, incorporation of arbitration agreements by reference is
considered as a matter in relation to the consent of the parties, and is
evaluated in conjunction with other matters relating to such consent. In
accordance with the U.S. Federal Arbitration Act, an agreement may
validly incorporate an arbitration clause from another agreement. It is
stated that in general, U.S. courts usually require less demanding evi-
dence of the parties’ intentions to incorporate an arbitration clause than
many other jurisdictions
9
.
Similarly, in French law, incorporation of an arbitration agreement
by reference is also accepted
10
. However, in one of its decisions, the
French Court of Cassation resolved that the existence of the arbitration
clause should be mentioned in the main agreement, unless a long-
standing business relationship which insures that the parties are aware
of written conditions that normally govern their commercial contract
exists
11
.
As per Swiss law, in order to incorporate an arbitration agreement
by reference, the outcome of such reference should be reasonable and
should comply with the bona fide principle
12
. German Civil Procedure
Law also accepts the incorporation of an arbitration agreement by ref-
erence only if the reference is conducted in such a way that renders the
agreement an inseparable part of the main agreement
13
.
Conclusion
In international trade, it is common for the parties to refer to cer-
tain standard contracts and general terms and conditions. If such stan-
dard contracts contain arbitration clauses, the validity of the arbitration
ARBITRATION LAW
171
9
Gary B. Born
, International Commercial Arbitration (Second Edition), Kluwer Law
International 2014, p. 824.
10
Esen,
p. 160.
11
Born,
p. 820, fn. 1006.
12
Esen,
p. 152.
13
Kalpsüz
, p. 1039.