At A Crossroads: The Case Of 'Pathological Arbitration Clauses' Which Determine A Jurisdictional Fight

• Author: Paul Comsa
• Pages: 47-55

LESIJ NO. XXV, VOL. 2/2018

AT A CROSSROADS: THE CASE OF “PATHOLOGICAL ARBITRATION

CLAUSES” WHICH DETERMINE A JURISDICTIONAL FIGHT

Paul COMȘA

Abstract

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 amon g 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.

Keywords: pathological arbitration clauses, defective arbitration agreements, defective clauses,

arbitration problems, jurisdictional fight.

1. Introduction

The ‘pathology’ of arbitration clauses

is, unfortunately, an “evergreen”

phenomenon. It is neither new nor

uncommon for law practitioners to

encounter hypotheses when parties insert ill-

drafted arbitration agreements which

generate confusion surrounding the setting

in motion o f an arbitration proceeding. The

ambiguity of such contractual terms is rarely

intentional. It is true that in certain

hypotheses the contractual party who drafts

the arbitration clause voluntarily refers to

equivoque arbitration procedures or to the

jurisdiction of do mestic courts in order to

discourage the other party to follow the

 Assistant lecturer, PhD Candidate, Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail:

paulcom7@gmail.com).

1

See Article 550 paragraph (2) of the Romanian Code of Civil Procedure (Law no. 134/2010 regarding the

Romanian Code of Civil Procedure, as republished in the Romanian Official Journal no. 247/2015 and last amended

on March 24th, 2017).

arbitration path. However, in most cases,

parties do not act in bad faith. Instead, they

usually lack basic knowledge for drafting

contractual terms and do not incorporate the

arbitration agreements generally

recommended by international arbitration

courts.

In my op inion, which may be slightly

different to the ones of other la w theorists,

‘pathological arbitration clauses’ ar e not to

be confused with null or void clauses. The

latter are terms that deviate from one or more

of the validity conditions.

Being accepted as a distinct

agreement, separate from the underlying

agreement

1

, the arbitration clause must

comply with the essential val idity

requirements of any contract. Under