Abstract
The aim of the paper was to investigate the independence of the arbitration clause from the main contract in the International Commercial Arbitration Law of Iran with a comparative study in the UNCITRAL model law. The effectiveness of this type of procedure, its coordination with the specific objectives and the special status of international traders has led to their increasing willingness to use this legal solution. We use a comparative method, quasi-experimental, to describe similarities and differences in variables in two or more existing groups in a natural setting; it resembles an experiment as it uses manipulation but lacks random assignment of individual subjects. This study begins analyzing international arbitration and the UNCITRAL model rules (Chapters I to VI), then reviewing the national arbitration (Chapter V); thus, the effects of the principle of independence of the arbitration clause can be seen (Chapter VII) and, later, the problems that arise (Chapters VIII to X). Even so, the main conclusion is that the parties usually agree to resolve their international disputes through arbitration, which is judged privately and universally accepted.
Highlights
The history of international trade has started with maritime transport and maritime commerce, since the old days merchants have shipped their goods by sea and ship
The text of the rule in Art. 21§2 of the UNCITRAL Arbitration Rules is as follows: The tribunal will have the discretion to decide on the existence or validity of the contract, which forms the part of the arbitration clause
Article 21§2 of UNCITRAL Arbitration Rules, stipulates for the independence of the arbitration clause, the arbitral tribunal will have the discretion to decide on the existence or validity of the contract, which forms the part of the arbitration clause
Summary
The history of international trade has started with maritime transport and maritime commerce, since the old days merchants have shipped their goods by sea and ship. Institutions and international arbitration bodies have accepted the principle of independence of arbitration in their rules of arbitration, in such a way that the dispute about the existence or influence of the main contract does not affect the validity of the arbitration clause and the arbitration body and the difference in the parties to the original contract will be considered. This is the rule that is referred to as “qualification” or “competence in qualification”. The arbitral tribunal’s decision that the contract is null and void will not result in invalidity of the arbitration clause (cfr. Van den Berg, 2007, pp. 3-31)
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