CEU Electronic Theses and Dissertations, 2014
| Author | Cunaj, Neida |
|---|---|
| Title | Separability within the arbitration clause with special focus on U.S. jurisdictions |
| Summary | The past decades have witnessed an increased role of arbitration as an alternative means in commercial dispute resolution. Given its growing reach and impact, the need to discuss issues as separability within the arbitration agreement is very important since this doctrine helps in salvaging the arbitration clause -making thus arbitration functioning- when it incorporates unlawful, invalid or unenforceable provisions. Separability within the arbitration agreement consist of the process of deleting defective provisions from the arbitration clause, thus making the latter able to survive and able to be enforced. The aim of this thesis is to provide the reader with a deeper understanding of this doctrine and a general framework of how and based on what factors the separability applies. The thesis will firstly focus on the separability application and its related arguments on arbitration clauses incorporated in seafarer agreements and consumer contracts. Moreover, separability application on clauses yielding a nonfunctional arbitration scheme will also be discussed, followed by author’s critical approach on the application of this doctrine in certain cases. The second part of the thesis will be devoted to the doctrine application on appeal mechanism designed by parties’ agreement, specifically heightened judicial review clauses and waiver or limited judicial review clauses. This work will be of help to anybody interested in the topic, and it can be easily used for practical purposes since it systematically offers a diversity of cases, arguments and results. With regards to the methodology, the thesis employs a qualitative approach, resting mainly on the analysis of US case law which is selected in a way to provide a solid understanding of the doctrine and a clear picture of the problems that might emerge from its application. US jurisdiction is mostly discussed because it is precisely where this doctrine is more widely elaborated. |
| Supervisor | Varady, Tibor |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2014/cunaj_neida.pdf |
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