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Francesco Zappalà, Ph.D.
Arbitrator expert in Contracts
News
Unilateral Arbitration Option Clauses.
Unilateral Arbitration Option Clauses, also known as asymmetric or split arbitration clauses, grant one party the exclusive right to choose between litigation and arbitration while binding the other party to a single dispute resolution mechanism. These clauses are particularly common in financial and commercial contracts, where they are often employed by the stronger party to secure a strategic advantage.
While some jurisdictions generally uphold Unilateral Option Clauses as an exercise of party autonomy under the freedom of contract, concerns about fairness and imbalance in bargaining power have led courts in several jurisdictions.
While some jurisdictions generally uphold Unilateral Option Clauses as an exercise of party autonomy under the freedom of contract, concerns about fairness and imbalance in bargaining power have led courts in several jurisdictions.
Selection of the Seat or Place of International Arbitration.
Factors relevant to the selection of the seat or place of international arbitration are generally well-known. Indeed, even clients, long oblivious to the perils of choosing the seat unwisely, are increasingly wary of the importance of giving at least some consideration to what is rightly considered as the single most important choice in arbitration. Yet, as the dispute resolution landscape continues to evolve, so do the factors informing the selection of the seat, and their role in ensuring that arbitration continues to deliver on its key promise of being an expeditious, expert and efficient process for resolving cross-border disputes.
Traditional considerations such as neutrality, quality of the judiciary, and a track record in enforcing arbitral awards remain paramount. But other factors play an increasingly important role namely, the scope of post-award review of arbitral jurisdiction, sanctions regimes and licensing attitudes, and availability of effective anti-suit relief. These factors can have major implications for the quality of the process and finality of arbitral awards but are sometimes insufficiently observed.
Traditional considerations such as neutrality, quality of the judiciary, and a track record in enforcing arbitral awards remain paramount. But other factors play an increasingly important role namely, the scope of post-award review of arbitral jurisdiction, sanctions regimes and licensing attitudes, and availability of effective anti-suit relief. These factors can have major implications for the quality of the process and finality of arbitral awards but are sometimes insufficiently observed.
Opinion
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