explain this point clearly "Option 1 states that the agreement should be in writing but then provides that the rule only requires that the content of the arbitration agreement is recorded and clarifies that it is irrelevant whether the agreement itself was concluded orally by conduct or by any means. What matters is thus only that the arbitration agreement is eventually recorded. This is clarified by the Hong Kong Arbitration Ordinance, "an arbitration agreement is in writing if (...) the agreement, although made otherwise than in writing is recorded by one of the parties to the agreement, or by a third party, with the authority of each of the parties to the agreement" Thus it is unclear whether it is appropriate to characterise it as a form of requirement. It could be analysed as a mere evidentiary requirement, with no impact on the validity of the agreement. In addition, "with other means" implying that there is a possibility that if the law governing the arbitration agreement allows it, an offer including an arbitration clause could be accepted by silence. Option one essentially eliminates the requirement of a "record of consent." Oral agreements to arbitrate might be fully enforceable as long as the remaining requirement of a "record of content" is met. Consent need only be proven as required under applicable national contract law.

The interpretation of the signature requirement in arbitration agreements, as outlined in paragraph 2, raises several key issues that have led to varying stances among different courts. One of the primary questions is whether the signature requirement applies to both the main contract (container contract) and the separate submission agreement, or solely to the submission agreement. This distinction is crucial as it impacts the enforceability of the arbitration agreement. The U.S. Fifth Circuit Court of Appeals has taken the position that only the separate submission agreement needs to be signed, while the container contract does not necessarily require signatures. Conversely, the U.S. Second and Third Circuits have diverged from this interpretation, asserting that the signature requirement extends to both the main contract and the submission agreement." using evidence and quotations from cases, or articles/textbooks, referenced. In order to explain which option is better " State X, which is already a party to the New York Convention, is planning on adopting the UNCITRAL Model Law on International Commercial Arbitration. However, State X is unsure whether to select Option 1 of Article 7 or Option 2 of Article 7. Option 1 provides as follows: (1) "Arbitration agreement" is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. 1 (2) The arbitration agreement shall be in writing. (3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means. (4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; "electronic communication" means any communication that the parties make by means of data messages; "data message" means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. (5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. (6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract. Option 2 provides as follows: "Arbitration agreement" is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. Your task is as follows: State X approaches you, one of the finest arbitration scholars in the world, and asks you to advise State X on this matter. To this end, you have been asked to explain whether it would be more advisable to choose Option 1 or Option 2, and why.