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# An “OK 🙏” is not necessarily an agreement to arbitrate.
- URL: https://internationalarbitrationobserver.com/an-ok-is-not-necessarily-an-agreement-to-arbitrate/
- Published: 2026-10-31T19:16:09.000Z
- Updated: 2026-10-31T19:16:09.000Z
- Author: Pierluigi Salvati
- Tags: Commercial Arbitration

Can an arbitration clause be concluded through WhatsApp? **Yes.** But does sending an invoice containing an arbitration clause, followed by a promise to pay, establish consent to arbitration? Not necessarily.

In its judgment of 14 September 2026 (4A\_237/2026), the **Swiss Federal Supreme Court** addressed precisely this question.

The dispute arose from the sale of artworks negotiated through WhatsApp. After the parties had reached their agreements, the seller sent invoices containing arbitration clauses in small print, together with its general terms and conditions. The buyer replied, among other things, “I will pay within the next hour” and, in a subsequent exchange, “OK 🙏” and “Bill please”.

The sole arbitrator considered these exchanges sufficient to establish consent to arbitration under the Swiss Rules. The Supreme Court disagreed and set aside the award for lack of jurisdiction.

The Court confirmed that **WhatsApp exchanges can satisfy the formal requirements for an arbitration agreement**. But the existence of a text capable of recording consent does not establish that consent was actually given.

The Court attached particular importance to the informal nature of instant messaging, observing that recipients cannot generally be expected to examine every detail of a multi-page PDF sent through such a channel.

There was another important consideration: **an invoice is ordinarily a request for payment, not an invitation to renegotiate the dispute resolution provisions of an existing contract**. A promise to pay cannot readily be construed as acceptance of an arbitration clause buried in its attachments.

The judgment is particularly interesting for its treatment of **incorporation by reference and post-contractual amendments**. It also offers a useful reminder that the formation of an arbitration agreement requires careful attention to the parties' actual contractual exchanges.

Although the case concerned domestic arbitration under Swiss law, the Court expressly referred to the parallel formal requirements under Article 178(1) of the Swiss Private International Law Act. Its reasoning therefore deserves attention well beyond the domestic arbitration context, subject to the applicable law governing the arbitration agreement.

**The practical lesson?** If arbitration is intended, make the agreement visible, identify the applicable terms and obtain clear acceptance. Do not leave jurisdiction to be reconstructed from an invoice and a WhatsApp emoji.