Pathological clauses in international commercial arbitration

Abstract

This article analyses the arbitration clauses, called in doctrine and in international commercial jurisprudence "pathological" clauses, which are drafted poorly, being likely to impede the proper conduct of international commercial arbitration due to incomplete, imprecise, unclear or contradictory stipulations. The remedies for the affected clauses depend on the nature and severity of the pathology affecting each clause, and, often, the deficiencies of these clauses are removed, as far as possible, by applying the various methods of interpretation of the contractual clauses, which have crystallized in national legislations, uniform law and comparative jurisprudence. The courts and arbitral tribunals give various decisions, depending on the legal regulations and the international commercial customs that they consider applicable in the case, the jurisprudence in this field being different.