AT A CROSSROADS: THE CASE OF `PATHOLOGICAL ARBITRATION CLAUSES` WHICH DETERMINE A JURISDICTIONAL FIGHT
The so-called ‘pathological arbitration clauses’ are ambiguously drafted arbitration agreements which disrupt the setting in motion of an arbitration proceeding. A particular situation is the case where parties refer both to the jurisdiction of the arbitration tribunals and to that of the domestic...
| Main Author: | |
|---|---|
| Format: | Article |
| Language: | English |
| Published: |
Nicolae Titulescu University Publishing House
2018-05-01
|
| Series: | Challenges of the Knowledge Society |
| Subjects: | |
| Online Access: | http://cks.univnt.ro/uploads/cks_2018_articles/index.php?dir=2_private_law%2F&download=CKS_2018_private_law_006.pdf |
| _version_ | 1818935999381635072 |
|---|---|
| author | Paul COMȘA |
| author_facet | Paul COMȘA |
| author_sort | Paul COMȘA |
| collection | DOAJ |
| description | The so-called ‘pathological arbitration clauses’ are ambiguously drafted arbitration agreements which disrupt the
setting in motion of an arbitration proceeding. A particular situation is the case where parties refer both to the jurisdiction of
the arbitration tribunals and to that of the domestic courts in their contracts, without giving further detail. Such agreements
may be interpreted in different ways and they currently cause controversy among several theorists and practitioners. However,
in recent years the arbitration tribunals strive to maintain the validity of the defective arbitration clauses by preferring an
interpretation which gives effect to the clauses over one which does not. Our paper briefly examines this kind of defective
arbitration clauses and the solutions provided by doctrinaires and courts. In the end, we assess the issue and attempt to
establish the parties’ true intention in order ‘to remedy’ the pathology. |
| first_indexed | 2024-12-20T05:29:05Z |
| format | Article |
| id | doaj.art-b6474bf2fedd4298985cfde8de3af955 |
| institution | Directory Open Access Journal |
| issn | 2068-7796 2068-7796 |
| language | English |
| last_indexed | 2024-12-20T05:29:05Z |
| publishDate | 2018-05-01 |
| publisher | Nicolae Titulescu University Publishing House |
| record_format | Article |
| series | Challenges of the Knowledge Society |
| spelling | doaj.art-b6474bf2fedd4298985cfde8de3af9552022-12-21T19:51:48ZengNicolae Titulescu University Publishing HouseChallenges of the Knowledge Society2068-77962068-77962018-05-0112-217222AT A CROSSROADS: THE CASE OF `PATHOLOGICAL ARBITRATION CLAUSES` WHICH DETERMINE A JURISDICTIONAL FIGHTPaul COMȘA0Assistant Professor, PhD Candidate, Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail: paulcom7@gmail.com)The so-called ‘pathological arbitration clauses’ are ambiguously drafted arbitration agreements which disrupt the setting in motion of an arbitration proceeding. A particular situation is the case where parties refer both to the jurisdiction of the arbitration tribunals and to that of the domestic courts in their contracts, without giving further detail. Such agreements may be interpreted in different ways and they currently cause controversy among several theorists and practitioners. However, in recent years the arbitration tribunals strive to maintain the validity of the defective arbitration clauses by preferring an interpretation which gives effect to the clauses over one which does not. Our paper briefly examines this kind of defective arbitration clauses and the solutions provided by doctrinaires and courts. In the end, we assess the issue and attempt to establish the parties’ true intention in order ‘to remedy’ the pathology.http://cks.univnt.ro/uploads/cks_2018_articles/index.php?dir=2_private_law%2F&download=CKS_2018_private_law_006.pdfpathological arbitration clausesdefective arbitration agreementsdefective clausesarbitration problemsjurisdictional fight |
| spellingShingle | Paul COMȘA AT A CROSSROADS: THE CASE OF `PATHOLOGICAL ARBITRATION CLAUSES` WHICH DETERMINE A JURISDICTIONAL FIGHT Challenges of the Knowledge Society pathological arbitration clauses defective arbitration agreements defective clauses arbitration problems jurisdictional fight |
| title | AT A CROSSROADS: THE CASE OF `PATHOLOGICAL ARBITRATION CLAUSES` WHICH DETERMINE A JURISDICTIONAL FIGHT |
| title_full | AT A CROSSROADS: THE CASE OF `PATHOLOGICAL ARBITRATION CLAUSES` WHICH DETERMINE A JURISDICTIONAL FIGHT |
| title_fullStr | AT A CROSSROADS: THE CASE OF `PATHOLOGICAL ARBITRATION CLAUSES` WHICH DETERMINE A JURISDICTIONAL FIGHT |
| title_full_unstemmed | AT A CROSSROADS: THE CASE OF `PATHOLOGICAL ARBITRATION CLAUSES` WHICH DETERMINE A JURISDICTIONAL FIGHT |
| title_short | AT A CROSSROADS: THE CASE OF `PATHOLOGICAL ARBITRATION CLAUSES` WHICH DETERMINE A JURISDICTIONAL FIGHT |
| title_sort | at a crossroads the case of pathological arbitration clauses which determine a jurisdictional fight |
| topic | pathological arbitration clauses defective arbitration agreements defective clauses arbitration problems jurisdictional fight |
| url | http://cks.univnt.ro/uploads/cks_2018_articles/index.php?dir=2_private_law%2F&download=CKS_2018_private_law_006.pdf |
| work_keys_str_mv | AT paulcomsa atacrossroadsthecaseofpathologicalarbitrationclauseswhichdetermineajurisdictionalfight |