In proceedings for the recognition and enforcement of a foreign arbitral award pursuant to the 1958 New York Convention, the validity of the arbitration agreement must be assessed according to the law to which the parties have subjected it or, in the absence of any indication, according to the law of the State in which the award was made, with the consequence that the opposing party who intends to challenge the validity of the arbitration clause bears the burden of proving its invalidity under the applicable law thus identified, and cannot merely rely on issues pertaining exclusively to the legal system of the State in which recognition is sought.
An arbitration agreement contained in an exchange of email messages between the parties satisfies the requirement of written form prescribed by Article II of the 1958 New York Convention, which expressly recognises the validity of an arbitration clause contained in an exchange of letters or telegrams, a category which includes modern forms of written communication.
In contracts of carriage by sea concluded through specialised brokers, the arbitration clause contained in the standard contractual form referred to in the communications exchanged between the parties is validly enforceable against the principal when it is proved that the broker acted in the name and on behalf of the latter, such proof being capable of being inferred also from circumstantial evidence such as the indication of the principal's name in the subject matter of the communications and the principal's knowledge of the performance of the contract.