The Validity, Effectiveness, and Enforceability of an Arbitration Agreement: Issues and Solutions

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.

Harmonizing Conflict: Exploring Global Applications of Alternative Dispute Resolution Methods

“…The key difference from litigation is that the parties select their arbitrators and the rules under which the arbitration will be conducted. Arbitration is binding and generally final, offering a speedy and more specialized resolution than court litigation (Serhii et al, 2021).…”

“…These were promptly fixed through arbitration, allowing for swift corporate image recovery (Pinkham & Peng, 2017). Through the case titled Eritrea-Yemen arbitration over the Hanish Islands, the Bechtel v. Bolivia investment dispute, and the Philippines v. China South China Sea conflict, a wide range of international disputes were amicably settled that highlight the effectiveness of arbitration, such as binding natures, and efficacy (Serhii et al, 2021). Various crucial disputes have been effectively resolved showcasing negotiation's capability to address multifarious global issues through dialogue such as United States government shutdown in 2013; the 16day deadlock ended with a negotiated agreement between political leaders that resurrected the government and stopped a potential debt default, the 2015 Joint Comprehensive Plan of Action between the US and Iran over nuclear activities, the Oslo Accords between Israel and the Palestine Liberation Organisation for Middle East peace, and the peaceful and pacific dissolution of the Soviet Union in 1991 (Schweinsberg et al, 2022).…”