Document Type : Research Paper

Authors

• Ali Moghaddam Abrishami ¹
• Fereshteh Sheikhvand ²

¹ Associate Professor at the Faculty of Law and Political Science, Allameh Tabatabai University

² PhD student in private law at Faculty of Law and Political Science, Azad University,

Abstract

More than Fifty years after Eeredric Eisemann's influential article, the issue of the pathological arbitration clauses still exists. Defects in an arbitration clause may occur in various instances. There are great controversies as to terminology, categorization and interpretation of defective arbitration clauses. Despite numerous judgements 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 invalidity of an arbitration agreement leads to setting aside the arbitral award and prevents its enforcement. It also affects the jurisdiction of the arbitral tribunal in both ad hoc and institutional arbitration. Although arbitral institutions provide model clauses with an aim to prevent or at least reduce the number of defective clauses, deviation from model clauses can largely be seen. This article discusses defective arbitration clauses by exploring national courts’ approach and interpretating arbitration clauses alluded to Arbitration Center of Iran Chamber (ACIC). It concludes that the concept of a pathologically defective clause remains alive in both pro-arbitration and unfriendly jurisdictions, and also suggests some solutions that the ACIC, facing different types of defective clauses, should take into account to address the problem.

Keywords

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

Main Subjects

• Private Law