Research and development in private law

Research and development in private law

Causes of pathological clauses in international commercial arbitration and ways to deal with them by looking at WIPO arbitration clause

Document Type : Original Article

Authors
1 Associate Professor, Department of Private Law, Faculty of Law, University of Tehran (Farabi Campus), Tehran, Iran
2 Master of Private Law, Faculty of Law, University of Tehran (Farabi Campus), Tehran, Iran
Abstract
The correct setting of an arbitration clause is one of the most important factors in the success of arbitration. However, there are cases where the arbitration clause is defectedly set or happens later. These are called pathological terms in international commercial arbitration and can have serious consequences for the parties involved. Among these consequences, we can point out the delay in resolving disputes, the increase in arbitration costs, and the possibility of them being considered invalid by the judicial courts. The questions that this research seeks to examine are what is the condition of pathological arbitration? And what factors cause pathological arbitration in international commercial arbitration? And finally, how can avoid pathological arbitration clauses in international commercial contracts? According to the results of this research, the factors that turn a correct arbitration condition into a pathological arbitration condition are not limited, but the most important of these are the incorrect determination of the arbitration organization (mistake in the headquarters (place) of the arbitration organization, incorrect reference to the name of the organization or reference to a non-existent organization, referring to an organization whose activity has been terminated), the death of the arbitrator or the arbitrator's refusal to arbitrate, the terms of dispute resolution with vague intent to arbitrate, the terms of white or incomplete arbitration, and the terms referring both parties to the court and arbitration together. The use of model clauses, authoritative guides, and the use of legal experts are the main factors in avoiding the immunity of pathological clauses. In this regard, the sample arbitration clause of the World Intellectual Property Organization has been introduced along with some other standard clauses.
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