THE ELEPHANT IN THE ROOM — PATHOLOGICAL CLAUSES — INTERPRETATION, INTERVENTION & COURT PRACTICE

Recognition and positive enforcement of pathological clauses by courts is a contentious issue with counterparties disputing its existence and interpretation. This paper assesses the thresholds in global practices for referring parties to arbitration. 1t analyses pathological clauses vis-a-vis Article 11 (3), United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) [“NYC”] and traces the practice of recognising pathologies across acclaimed arbitration Dbubs. It categorises pathologies into simple pathologies (e.g. incorrect arbitral institution, arbitrator etc.) and complex pathologies wherein the intent to arbitrate also remains contentions. The existence of different approaches in the selected jurisdictions towards pathology; their pro-arbitration or interventionist approach and the consistency in interpretation of pathological clauses is the fulcrum of the research. More so, the divergent interpretations drawn by the Indian courts in interpreting and recognising pathological clauses is being tested on the international benchmarks.

THE ELEPHANT IN THE ROOM — PATHOLOGICAL CLAUSES — INTERPRETATION, INTERVENTION & COURT PRA.

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