Th is article discusses the legal framework which is applicable to the assessment of option arbitration clauses, and more in particular unilateral option arbitration clauses. An option arbitration clause provides that the parties to a contract have the right to choose to have disputes over that contract resolved by the Courts or by means of arbitration. Unilateral option arbitration clauses confer this right on only one of the parties (and not the other). It is submitted that the framework which is applicable to option arbitration clauses – both at the stage of the recognition of the arbitration agreement included in such a clause and at the stage of the recognition and enforcement of an award based on this type of clause – is the New York Convention of 1958. Pursuant to this Convention, it should fi rst be assessed what is the law that is applicable to (the arbitration element in) the option arbitration clause. It is on the basis of this law that the validity of the option arbitration clause must be assessed. Insofar as this law is not the substantive law of the forum, this law does not play a part in the assessment of the option arbitration clause.
19 augustus 2017