The Notion of the Superiority of Arbitration Agreements over Jurisdiction Agreements: Time to Abandon It?

Abstract

The article undertakes a comparative analysis of jurisdiction and arbitration agreements, showing that arbitration agreements are afforded a preferential treatment over jurisdiction agreements. As the article explains, the pro-arbitration trend favouring the enforcement of arbitration agreements has, in effect, gone too far: it has led to the development of the notion of the superiority of arbitration agreements over jurisdiction agreements, which threatens to overthrow the balance of party autonomy in forum selection agreements. This article challenges the notion of the superiority of arbitration agreements, showing that arbitration and jurisdiction agreements have the same objective: to serve procedural party autonomy. It concludes that any special treatment provided to arbitration agreements is not supported by convincing reasoning, or, at least, it is not justified by any sort of “inherent superiority” of arbitration agreements over jurisdiction agreements.