Pathological arbitration clauses: problems and solutions

Abstract

This article is devoted to the issue of arbitration clauses, called in doctrine and jurisprudence “pathological” clauses, which are drafted poorly, being likely to prevent the proper conduct of arbitration due to incomplete, imprecise, unclear or contradictory stipulations. The remedies for the affected clauses depend on the category and severity of the pathology affecting each clause, and, often, the deficiencies of these clauses are removed, as far as possible, by applying the various methods of interpretation of the contractual clauses, which have crystallized in national legislations, uniform law instruments and comparative jurisprudence. In remedying the pathological causes, the courts must seek a balance between the favoring of arbitration as an alternative method of dispute resolution and the control of state jurisdictions over the validity and effectiveness of some defective clauses, by way of clarifying and respecting the real will of the parties expressed in their agreement on how to regulate the disputes that arise between them.