AT A CROSSROADS: THE CASE OF “PATHOLOGICAL ARBITRATION CLAUSES” WHICH DETERMINE A JURISDICTIONAL FIGHT
AT A CROSSROADS: THE CASE OF “PATHOLOGICAL ARBITRATION CLAUSES” WHICH DETERMINE A JURISDICTIONAL FIGHT

Summary/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 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.

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