Gary Born, Matteo Angelini and Carina Alcoberro Llivina consider a number of recent decisions concerning allegedly “pathological” arbitration clauses in a chapter appearing in Finances in International Arbitration: Liber Amicorum Patricia Shaughnessy (2019, Wolters Kluwer).
The authors observe that the term “pathological clause” may now be a misnomer in light of the modern trend in national courts, which is to apply a validation principle to give effect to commercial parties’ dominant intention to resolve their international disputes by arbitration, notwithstanding errors or defects in expressing the particular means of dispute resolution.
