The Validity, Effectiveness, and Enforceability of an Arbitration Agreement: Issues and Solutions
Summary: 1. Introduction. – 2. General Requirements for the Validity of an Arbitration Agreement in the Context of Convention Regulation. – 3. The Ratio of ‘Autonomy of Will’ and the Validity of an Arbitration Agreement. – 4. The Choice of Law when Concluding an Arbitration Agreement. – 5. The Staged Nature of Regulation of the Validity of an Arbitration Agreement. – 6. The Ukrainian Experience of the Validity of an Arbitration Agreement. – 7. Conclusions.
Abstract
The main reason for dispute in international commercial arbitration is the existence of an arbitration agreement concluded between the parties to a foreign trade agreement. The procedure of dispute resolution in international commercial arbitration will depend on the extent to which this arbitration agreement is concluded
correctly in accordance with the norms of international and national law. Quite often, in the law enforcement activities of both national courts and arbitrations, there are questions about the validity, effectiveness, and enforceability of an arbitration agreement. In different countries, this issue is addressed ambiguously. In one case, national law takes precedence, and, accordingly, national courts are empowered to consider the validity, effectiveness, and enforceability of an arbitration agreement. In other cases, however, the autonomy of the arbitration agreement is a priority aspect of the consideration of any procedural issues by international commercial arbitration as the only and indisputable body authorised by the parties to the foreign trade agreement to consider a particular dispute. The article analyses doctrinal and legislative approaches to this issue, in which the authors come to the logical conclusion that national courts do not consider the validity, effectiveness, and enforceability of an arbitration agreement.
About Authors
Kravtsov Serhii
PhD (Law), Associate Professor, Department of Civil Procedure, Yaroslav the Wise National Law University s.o.kravtsov@nlu.edu.ua
0000-0002-8270-193X
Surzhenko Olga
Associate Professor, Department of Civil Law, Yaroslav the Wise National Law University, Ukraine
o.a.surzhenko@nlu.edu.ua
0000-0002-9/32-9797
Golubeva Nelli
Dr. Sc. (Law), Professor, Head of Department of Civil Procedure, Professor of Civil Law Department of National University «Odesa Law Academy», Ukraine nelligolubeva11@nlu.ua
0000-0002-3071-4990
CONFLICTS OF INTEREST
The authors declare no conflict of interest of relevance to this topic. Although one of the authors serves at the same institution as one of the editors of AJEE, which may cause a potential conflict or the perception of bias, the final decisions for the publication of this article, including the choice of peer reviewers, were handled by the editors and the editorial board members, who are not affiliated with the same institution.
DISCLAIMER
The authors declare that they were not involved in any state bodies, courts, or any other organisation’s activities related to the discussed views and case-law.
ACKNOWLEDGEMENTS
The authors would like to express their gratitude to the reviewers and editors of the journal and to the English editor, Sarah White.
CONTRIBUTORSHIP
The authors contributed jointly to this study and its results. Serhii Kravtsov is responsible for the exploration of sources and for the data collection, analysis, and writing; Olga Surzhenko and Nelli Golubeva are both responsible for analysis and interpretation; all the co-authors take responsibility for the content of the paper. The content of the paper was translated with the participation of third parties under the authors’ oversight.
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How to cite it?
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O Surzhenko, S Kravtsov, N Golubeva ‘The Validity, Effectiveness, and Enforceability of an Arbitration Agreement: Issues and Solutions’ 2021 4(12) Access to Justice in Eastern Europe 116–130. DOI: https://doi.org/10.33327/ AJEE-18-4.4-n000088
