ERDEM-NEWSLETTER-2018-metin

131 ARBITRATION LAW requirement of national arbitration laws. A similar restriction has been provided for arbitral awards in Article III of the Convention which states as follows: “ … There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition and enforcement of arbitral awards to which this Convention applies than are imposed on the recognition and enforcement of domestic arbitral awards .” According to Article II of the Convention, arbitration agreements need to be in writing. The said article provides a narrow definition of writing, and contains two alternatives: an arbitral clause in a contract, or an arbitration agreement. The second paragraph of this article cov- ers agreements “signed by parties, or contained in an exchange of letters or telegrams”. This provision has been criticized as there is a view arguing that a liberal approach should be taken and, if not, the article needs to be interpreted in accordance with modern necessities. Thus, some advo- cate that the requirement should be relaxed, if not abolished. However, it should be added that the Model Law has reduced the importance of writing, and does not require signatures. Furthermore, national courts have widely interpreted the writing requirement of the New York Convention, as it can be seen in the Sphere Drake Insurance PLC v Martine Towing, Inc. 4 case where the US courts gave priority to intent over form, and stated that arbitration clauses do not have to be signed, provided they constitute a part of the contract. Therefore, the court held that the phrase after the comma did not apply to both of the antecedent clauses, but only to the latter one. Similarly, in Com- pagnie de Navigation et Transport SA v Mediterranean Shipping , the Swiss Supreme Court held that arbitration clauses do not have to be signed 5 . By contrast, there are other courts where this requirement has been interpreted very strictly 6 . 4 16 F.3d 666, 669 (5th Cir. 1993). 5 The Court has stated “ the need for a signature inevitably diminishes, especially in international commerce, and the different treatment reserved to signed and unsigned documents is under discussion ”. 6 Examples include Robobar v Finncold SAS , a decision of the Italian Supreme Court, and Kahn Lucas Lancaster Inc. v Lark International Ltd. (186 F.3d 210 (2d Cir. 1999), a decision of the US Court of Appeal.