Perspective practice privind clauzele arbitrale unilaterale
Practical Perspectives on Unilateral Arbitration Clauses

Author(s): Cristina Ioana Florescu
Subject(s): Law, Constitution, Jurisprudence, Commercial Law
Published by: Universul Juridic
Keywords: arbitration; arbitral option clause; unilateral/asymmetric option clause; jurisprudence;
Summary/Abstract: This paper focuses on the most commonly encountered unilateral option clause, namely that clause which provides for arbitration as an implicit dispute settlement mechanism, but which gives only one party the right to bring the dispute before the national courts. Such clauses are a common feature in many international contracts and transactions, especially in constructions and those involving financial institutions. The paper aims is to present first the purpose of the alternative dispute resolution clauses and the factors that the parties take into account when selecting such a dispute resolution mechanism. It then considers the validity and unilateral applicability of the option clause in certain key jurisdictions, analyses the reasons for their different attitudes, and examines whether the unilateral option clauses are still appropriate to their purpose, role and functionality. Thus, the arguments used by the courts rejecting the validity of these clauses are briefly analysed and it is concluded that none constitute an adequate basis for invalidation.

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