Null and void, inoperative or incapable of being performed of an arbitration agreement

Abstract

The parties must have a written arbitration agreement before referring their dispute to arbitration. The party might refuse to refer their dispute to arbitration on the ground that the arbitration agreement is “null and void, inoperative or incapable of being performed”. This research is conducted to identify the circumstances that the arbitration agreement is “null and void, inoperative or incapable of being performed”. Thus, this research investigated eleven cases from Malayan Law Journal where the courts held that the arbitration agreement is “null and void, inoperative or incapable of being performed”. This can be a guideline for the parties who want to resolve their dispute by arbitration. The methodology of this study is based on documentary analysis with the assistance of Nvivo 11. From the analysis, there are five circumstances which led to the arbitration agreement to be “null and void”. First, the agreement does not have a clear wording to refer arbitration clause in another document. Second, there is no acceptance by a party on the arbitration agreement. Third, the parties in dispute are not the parties in the arbitration agreement. Fourth, the agreement does not show intention to refer arbitration clause in another document. Fifth, the dispute does not within the scope of the arbitration agreement. Besides, there are two circumstances which led to the arbitration agreement to be “inoperative”. First, the party fails to comply with the time frame stipulated in the arbitration agreement. Second, the arbitration agreement incorporated the permissive word and there is another clause which conflicts with the arbitration clause.