PIL.OT / DEVELOPMENT
PIL.OTv0.62.2
Louis Flannery KC and Professor Robert Merkin KC address when a reference to another document is sufficient to create a binding arbitration agreement under English law. They trace the method’s development in international trade and the approach of the English courts, comparing it with what they describe as more pragmatic approaches in Singapore and Hong Kong.
The authors conclude that the current position under English law is not entirely clear. Their analysis therefore allows the English approach to incorporation by reference to be assessed against practice in other common-law jurisdictions.
When incorporation by reference of terms from another document is sufficient to create a binding arbitration agreement, particularly under English law.
The work identifies the uncertainty surrounding when incorporation by reference produces a binding arbitration agreement under English law and compares that approach with practice in Singapore and Hong Kong.
Journal of International Arbitration · 2026
DOI 10.54648/joia2026024
Louis Flannery KC, Professor Robert Merkin KC, “Incorporation of Arbitration Agreements by Reference under English Law: Time to Free It from Its Nineteenth Century Shackles?”, Journal of International Arbitration, 2026-10-01, 10.54648/joia2026024. https://doi.org/10.54648/joia2026024