Naslov
Assignment of the Arbitration Agreement

Autori
Tepeš, Nina

Izvornik
Croatian arbitration yearbook (1330-6219) 10 (2003); 115-149

Vrsta, podvrsta i kategorija rada
Radovi u časopisima, članak, znanstveni

Ključne riječi
arbitration; assignment of the arbitration clause; automatic transfer theory; express consent theory; formal validity of the arbitration agreement; separability of the arbitration agreement

Sažetak
Assignment of the arbitration clause is frequently observed in international commercial practice. However, on both a national and an international level, one can detect a lack of statutory rules that would specifically deal with this problem. A survey of legal doctrine and jurisprudence reveals that there are two opposing theories purporting to provide a solution - the so-called automatic transfer theory and the express consent theory. The paper does not attempt to provide the reader with arguments in favuor of the explicit application of either of these theories, but rather aims at placing them both in their proper context. The author primarily shows that neither of the respective theories should be applied on account of unjustified interpretation of standards that can today be observed in the practice of international commercial arbitration. As a reaction to the reasoning observed in jurisprudence, according to which both the formal validity of the arbitration agreement and the application of the principle of separability should be taken into account when dealing with the issue of the assignment of the arbitration agreement, the author analyses to what extent such interpretations should actually be upheld. Special attention is also given to the requirements relating to the debtor’ s and the assignee’ s consent, as they represent the main factors that must be taken into account when dealing with the challenging issue of the assignment of the arbitration agreement.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA