In India, a valid arbitration agreement is generally required to start arbitration proceedings. An arbitration clause is the most common way to establish this agreement, but it is not the only way. The parties may also enter into a separate arbitration agreement after a dispute arises.
If there is no existing arbitration agreement, one party generally cannot force the other party to resolve the dispute through arbitration merely by sending an arbitration notice.
1. Is a written arbitration clause mandatory?
A clause in the original contract is not always necessary. Under the Arbitration and Conciliation Act, 1996, the parties can have a separate arbitration agreement covering their dispute.
The agreement must satisfy the legal requirements for an arbitration agreement. It is generally required to be in writing, but it does not always need to appear as a separately signed document. Depending on the circumstances, an agreement recorded through an exchange of letters, emails, or other qualifying communications may be sufficient.
2. What if there is no arbitration clause or written agreement?
If no arbitration agreement exists, you can ask the other party to enter into one now. If both parties agree, they can record their agreement in writing and proceed according to its terms.
If the other party refuses, you generally cannot compel them to arbitrate merely because a dispute exists. You may need to consider filing a civil suit or using another applicable legal remedy instead.
3. Can emails or WhatsApp messages count as an arbitration agreement?
They may, depending on their content and the circumstances. Section 7 of the Arbitration and Conciliation Act, 1996, recognises certain exchanges of electronic communications as evidence of a written arbitration agreement. The messages must show an actual agreement to submit the dispute to arbitration; merely discussing arbitration as a possible future option may not be sufficient. 
4. What should you do next?
- Review the contract and any attached terms and conditions.
- Check emails and messages for an existing agreement to arbitrate.
- If none exists, ask the other party whether they will agree to arbitration in writing.
- If they decline, consult a lawyer about a civil suit, mediation, or another remedy appropriate to the dispute.
- Check any applicable limitation period before delaying action.
