Skiljeavtal och dess giltighet - En utredning om skiljeavtalets tolkning vid behörighetsfrågor

Detta är en Kandidat-uppsats från Lunds universitet/Institutionen för handelsrätt

Sammanfattning: When two parties formulate a contract, several clauses are to be considered. In commercial agreements, a clause regulating which dispute resolution method should be applied on future conflicts is usually included. The dominating alternative dispute resolution is arbitration. Arbitration is a type of a private dispute resolution method, where an arbitration panel has the authority to try dispute questions and reach a solution which is equally binding as a court order. The dispute clause is considered an independent contract and is defined as a dispute contract. The contract is unique because it is regulated by both the contact law and the procedural law. Furthermore, the contract allows a type of private jurisdiction which restricts the right to a public trail. To formulate a valid dispute contract, a specific legal relationship must be identified and the dispute question must be dispositive. Various views on how a dispute contract should be interpreted has been thoroughly discussed in doctrine. Regarding the validity of the contract, a restrictive and an extensive interpretation method has been proposed. A restrictive interpretation finds support in article 6 EKMR. An extensive interpretation finds support the general interpretation principals within contract law. Interpretation of the dispute question has also been discussed. The Supreme court has suggested a few different doctrines which are to be applied. However, uncertainty about when these doctrines should be applied still exists. Uncertainty about how a dispute contract and the dispute questions should be interpreted leads to complications when formulation the contract. If a contract is poorly formulated it could result in unwanted consequences, where a party can be stripped of the right to a public trail or that the process is ineffectively conducted. Furthermore, an uncertainty of how the dispute contract should be interpreted could lead to parallel processes regarding the same dispute question. These types of processes results in infectivity, which is damaging for the party as well as the public.

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