Document Type : Research Paper

Authors

• Ali Moghaddam Abrishami ¹
• Fereshteh Sheikhvand ²

¹ Associate Professor at the Faculty of Law and Political Science, Allameh Tabataba'i University, Tehran, Iran.

² PhD student in Private Law, Faculty of Law and Political Science, Karaj Branch, Islamic Azad University, Karaj, Iran.

Abstract

More than fifty years after Frédéric Eisemann's influential article, the issue of the pathological arbitration clauses still exists. Defects in an arbitration clause may occur in various instances. The task of national courts and arbitral tribunals is to determine whether a defective clause is curable or incurable. There are great arguments and controversies as to terminology, categorization and interpretation of defective arbitration clauses. Despite numerous judgments made by different courts in various jurisdictions, ambiguities and conflicting interpretations can still be observed, not only among jurisdictions, but also within a jurisdiction. The ways in which national courts and arbitral tribunals interpret the common intention of the parties depend, to a large extent, on how the clash between policy and principle is considered. The invalidity of the arbitration agreement is a ground for setting aside the arbitral award or refusing enforcement. It also affects the jurisdiction of the arbitral tribunal in both ad hoc and institutional arbitration. Although arbitral institutions provide model clauses in order to assist the parties in drafting arbitration clauses, deviation from model clauses can largely be seen. This article discusses defective arbitration clauses by exploring the approaches of national courts and by interpreting arbitration clauses referring to Arbitration Center of Iran Chamber (ACIC). It concludes that the concept of a pathologically defective clause remains alive in both pro-arbitration and arbitration-unfriendly jurisdictions, and it proposes solutions in order for the ACIC to address the problem.
 

Keywords

• Arbitration
• Arbitration Clause
• Pathological and Defective Clause
• Arbitral Institution
• Institutional Arbitration
• Arbitration Center of Iran Chamber (ACIC)

Main Subjects

• Private Law