Pathological Clauses: Frederic Eisemann's Still Vital Criteria

Abstract

when preparing this article, my office was being renovated. In the course of the informal ‘inspections’ of the Works by other members of the Secretariat, one of the assistants who has been with the ICC for over 25 years advised me that I was working in the former office of Frederic Eisemann. Frederic Eisemann, who coined the phrase ‘pathological clauses’ or ‘clauses pathologiques’ had a long and distinguished career at the ICC as Secretary-General of the then Court of Arbitration (now, the ‘International Court of Arbitration’). In his seminal 1974 article,2 Eisemann presented and analyzed a series of arbitration clauses (he called them ‘pearls’), tainted with various pathologies, that he had taken from his ‘dark museum’ of arbitration. What with dark museums and pearls, I was stimulated to make a thorough search of the premises. Who could know what riches might be found? I did not find the dark...