The legitimacy of asymmetrical arbitration clauses in international commercial arbitration

Gadkari, Ahan (2023) The legitimacy of asymmetrical arbitration clauses in international commercial arbitration. RGNUL Financial & Mercantile Law Review, 10 (1). ISSN 2347-3827

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Abstract

Despite the contrast in the parties’ positions, unilateral dispute settlement provisions have garnered widespread recognition from judicial tribunals due to their consensual character. Nevertheless, due to specific flaws inherent in their one-sided character, similar provisions have been rejected in a few cases in the past. Apart from causing substantive imbalance, they foster procedural inequality by allowing one of the parties to choose the venue after the dispute has occurred. Their legitimacy, however, has never been challenged against the standard set out in Article 18 of UNCITRAL Model Law, which demands equal treatment of parties in arbitral proceedings. This paper aims to examine such asymmetrical arbitration clauses provisions under Article 18 of UNCITRAL Model Law, taking inspiration from the judicial handling of similar clauses under Article 6 of the European Convention on Human Rights, which is the basis of Europe’s need for equitable treatment. Thus, the article’s subsequent sections explore the nature and scope of Article 18 in order to determine if it may be used to challenge unilateral dispute settlement provisions. Finally, the paper suggests an objective three-step test that judicial courts and arbitral tribunals might use to resolve this majorly unresolved issue.

Item Type: Article
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 17 Jul 2023 08:59
Last Modified: 17 Jul 2023 08:59
Official URL: https://www.rfmlr.com/volume-10-issue-1
URI: https://pure.jgu.edu.in/id/eprint/6334

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