VALIDITY OF OPTIONAL (HYBRID) ARBITRATION CLAUSES: FOREIGN AND DOMESTIC EXPERIENCE

The article is devoted to the study of the non-traditional type of arbitration agreements — optional (hybrid) arbitration clauses, which provide the parties (or only one party) with the right to choose between arbitral institution and national courts. The article deals with foreign case law regarding the (in)validity of unilateral arbitration clauses. In particular, the authors have analyzed the decision in «Russian Telephone Company v Sony Ericsson Mobile Communications Rus» case in terms of correlation of the principle of party autonomy with the principle of equal treatment considering the practice of the European Court of Human Rights. It is substantiated that the party autonomy as the fundamental principle of international commercial arbitration does not violate the principle of equal treatment since the party with only one forum selection option still has an opportunity to bring the claim for settlement to either arbitration or national court, as negotiated. The authors found out that the legal approach to resolving the issue of the validity of unilateral arbitration clauses varies by jurisdiction from fully recognizing the right of the parties to conclude such agreements to declaring them invalid by national courts or due to legislation limitation. This requires a thorough consideration of the law applicable to the arbitration clause, as well as the law of the seat of arbitration and the law of any states in which enforcement of arbitration award might be sought. The scientific article demonstrates the progressive approach of Ukrainian courts to resolving the issue of the validity of asymmetric arbitration agreements. Nevertheless, this does not exclude the risks associated with the use of the asymmetric agreements. The factors that should be taken into account when deciding on the conclusion of a one-sided arbitration agreement are stated, recommendations on the formulation of certain provisions of optional (hybrid) arbitration clauses are made.