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

Author:Paul Comsa
Pages:47-55
SUMMARY

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... (see full summary)

 
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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

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